McALLEN, Texas (Border Report) — A group of Texas sheriffs has asked the U.S. Supreme Court to directly hear their lawsuit against the Biden administration’s immigration enforcement methods — bypassing lower courts — citing a summer ruling stating that only the high court can issue injunctions relating to immigration enforcement policies.
The legal strategy is new, and legal analysts tell Border Report they doubt it will work.
The seven Texas sheriffs plus the Federal Police Foundation, and the U.S. Immigration Customs Enforcement Officers Division on Monday asked the Supreme Court to consider their claims in their case against President Joe Biden, Homeland Secretary Alejandro Mayorkas, and the directors of Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP).
The sheriffs’ lawsuit was originally filed in October 2021 in the Southern District of Texas Galveston Division.
The plaintiffs include Texas sheriffs from the counties of Edwards, McMullen, Live Oak, Real and Galveston, as well as the border counties of Kinney and Hudspeth.
Their 53-page lawsuit wants the court to force the Biden administration to end immigration enforcement changes that were implemented after Donald Trump left office, including the ending of the Migrant Protection Protocols (MPP) program commonly known as the “Remain in Mexico.” They are also seeking an injunction that would allow for the immediate detention of all migrants who cross the Southwest border without legal documents.
They ask the high court to intervene immediately and forgo lower courts — at the district and appellate level — citing a June ruling in Biden v. Texas case, in which the Supreme Court upheld the U.S. Department of Homeland Security’s memorandum ending MPP, as a lawful final agency action consistent with federal immigration law and the Administrative Procedure Act.
The sheriffs are testing the theory that no other lower courts may issue injunctions against certain immigration policies by asking the high court to allow this case to skip the legal line, so to speak, Aaron Reichlin-Melnick, policy counsel at the nonprofit American Immigration Council, told Border Report on Tuesday.
“It’s a cutting-edge legal request,” Reichlin-Melnick said. “It’s like trying out this new theory.”
“They’re saying, ‘OK you put us in a bind this spring with your decision on the :”Remain in Mexico” case, now we want to go directly to you,’ skip the district court, skip the appeals court and go directly to (the Supreme Court),” he said.
On Tuesday, Reichlin-Melnick tweeted the case is “a fascinating (but likely unsuccessful) motion to intervene.”
Reichlin-Melnick told Border Report he doubts the high court will adhere to the request because the sheriffs’ case and the MPP case have subtle differences, and he believes the high court will require the case to be fully vetted by lower judges prior to taking it on.
“It is a different enough scenario that the Supreme Court will likely turn them down,” he said.