A coalition of Democratic-run cities asked the Supreme Court on Thursday to halt a June ruling in a federal court that would block a Biden administration immigration rule allowing judges to close deportation proceedings indefinitely, after the Trump administration declined to defend the rule.
Texas officials sued the federal government over the rule in June, but hours after the lawsuit was filed, the Department of Justice said it agreed with Texas that the rule should be set aside, leading U.S. District Judge Reed O’Connor, a nominee of former President George W. Bush, to enter a final consent judgment tossing the rule. A coalition of Democratic cities, led by Baltimore, has attempted to intervene in the lawsuit seeking to defend the Biden-era rule but has been unsuccessful, leading them to the Supreme Court.
“This case involves 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 coalition of cities said in their emergency petition to the Supreme Court.
“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 [Administrative Procedure Act’s] rulemaking requirements,” the emergency petition continued.
Texas and opponents of the rule argued that the expanded ability for judges to close cases without resolution gave illegal immigrants a way to avoid removal indefinitely.
The Democratic coalition argued that the DOJ’s refusal to defend the rule unlawfully circumvents the process outlined in the APA for revoking federal rules. The group also warned that if the Supreme Court allows the district court’s ruling to stand, it would open the door for future administrations to go around proper rulemaking procedures when undoing rules they do not like.
“If a judgment procured through such open collusion is allowed to remain in effect, any agency can avoid the strictures of the APA by advertising its unwillingness to defend a disfavored regulation and by immediately acquiescing to nationwide relief,” the emergency petition from the cities said.
“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. And given agency incentives, such collusive suits will surely proliferate further,” the emergency petition continued.
JUDGE BLOCKS BIDEN-ERA RULE THAT ALLOWED INDEFINITE CLOSURES OF DEPORTATION CASES
The Biden-era rule struck down by the district court expanded immigration judges’ administrative ability to close removal proceedings, removing the case from the judge’s docket without resolving whether the person is removable from the United States.
There are no set timelines for emergency petitions at the Supreme Court, meaning the justices could reject the petition or request a response at any time. A decision on the petition could come within the next week.