The Sixth Circuit issued a very interesting decision three days ago in Arizona v. Biden (22-3272).  The origins of the dispute go back to last fall when the Secretary of Homeland Security issued “Guidelines for the Enforcement of Civil Immigration Law.”  The Guidance notes the Department lacks the resources to apprehend and remove the roughly 11 million removable noncitizens in the country.  As for removal of noncitizens who are already in state custody, the Guidance prioritizes the removal of those individuals who threaten national security, public safety, and border security.  Eleven days before the Guidance took effect, three States — Ohio, Arizona, and Montana — filed suit against the United States, the Department of Homeland Security, and various officials (collectively, “the Department”).  In the States’ view, the Guidance impermissibly deprioritized the removal of noncitizens who fall into other categories that Congress still wants removed, including noncitizens who commit drug crimes and crimes of moral turpitude.  The States requested a preliminary injunction to prevent the Department from implementing the Guidance.  The States claimed the Guidance violates the Administrative Procedure Act because it is contrary to law, arbitrary or capricious, and should have been subject to notice and comment.  After the District Court granted the States a “nationwide preliminary injunction,” the Department sought emergency relief in the Sixth Circuit.

The Sixth Circuit heard oral argument in the case on April 7, 2022, and just five days later the Court issued a decision staying the District Court’s injunction.  Chief Judge Sutton wrote the opinion for the Court, which Judge Moore and Judge Cole joined.  Judge Sutton also took the unusual step of writing a concurring opinion in addition to his majority opinion addressing the issue of nationwide injunctions.

The Court’s majority opinion tackled both justiciability and the merits of the States’ challenge.  On both fronts, the Court thought the feds were likely to succeed in their appeal of the District Court’s injunction.  On constitutional standing, the Court deemed the States’ asserted injuries too speculative.  The Court noted the Guidance does not directly injure the States.  Indeed, the Court thought the Guidance could possibly decrease burdens on the States.  The States also had a causation problem.  The Court reasoned most of the fall in immigration enforcement is attributable to prosecutorial discretion at the front end when immigration agents and law enforcement decide whom to arrest and whom not to — not the back end when detention and removal decisions are made.  The States also argued that Massachusetts v. EPA, 549 U.S 497 (2007) relaxed the Constitution’s standing requirements for States — to no avail.  While the Court acknowledged that the States had “more theories of injury available to them” under Massachusetts v. EPA, that did not “allow them to bypass proof of injury in particular or Article III in general.”

The Court also doubted the reviewability of the Department’s Guidance under the APA.  It was not clear that the Guidance constituted an action “by which rights or obligations have been determined, or from which legal consequences will flow.”  An important clue in that regard was the conditional language of the Guidance, which preserves much official discretion.

The States’ challenge fared no better on the merits.  The Court shot down each statutory basis the States cited in support of their claims.  The States argued that while federal law “requires” the Department “to arrest and remove certain aliens,” the Guidance lets immigration officers do so only after they “determine that arrest or removal is justified by a set of extra-statutory factors.”   But the Court thought it unlikely that such mandatory language displaced the Department’s longstanding discretion in enforcing “the many moving parts of the nation’s immigration laws.”  The States’ arguments based on arbitrary-or-capricious review and notice-and-comment largely met the same fate.  At day’s end, whether because of justiciability or merits defects, the Court concluded the Department was entitled to a stay.

Especially interesting was Chief Judge Sutton’s separate concurrence on the issue of nationwide injunctions.  Judge Sutton added his voice to a growing chorus of detractors who have expressed concern over such injunctions in recent years.  According to Judge Sutton, nationwide injunctions “seem to take the judicial power beyond its traditionally understood uses, permitting district courts to order the government to act or refrain from acting toward nonparties in the case.” In the process, Judge Sutton reasons, they encroach on the rules governing class actions, and they create practical problems by incentivizing forum shopping and short-circuiting judicial decisionmaking.  Agree or disagree with him, Judge Sutton’s concurrence is well worth a read.  It is a helpful primer that canvasses the leading critiques of this peculiar remedy while making its own unique contribution to the debate.