Let’s talk about 8 U.S.C. § 1252(f)(1) and Justice Barrett’s concurrence in Biden v. Texas

In Biden v. Texas, several states challenged President Biden’s attempt to rescind the “Remain in Mexico” policy. Ostensibly, the Court ruled for President Biden by a 6-3 vote, but really the vote was 5-4. Justice Barrett agreed with Chief Justice Robert’s majority opinion on the merits. But she dissented on jurisdictional grounds. And that disagreement turns on 8 U. S. C. §1252(f)(1). It provides:

Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.

The trial court in Biden v. Texas, and in related cases, determined that Section 1252(f)(1) was not a jurisdictional bar to enjoin President Biden’s decision to rescind MPP. Is this decision correct? In Garland v. Aleman Gonzalez (2022), the Court held that Section 1252(f)(1) of the INA deprived district courts of jurisdiction to entertain a request for class-wide injunctive relief. So far as the injunction goes, the district court ran afoul of Aleman Gonzalez. But Aleman Gonzalez did not squarely decide if §1252(f)(1) deprives the district court of subject-matter jurisdiction.

In May 2022–shortly before Aleman Gonzalez was decided–the Court requested supplemental briefing on this issue for Biden v. Texas:

The parties are directed to file supplemental briefs addressing the following questions: (1) Whether 8 U. S. C. §1252(f)(1) imposes any jurisdictional or remedial limitations on the entry of injunctive relief, declaratory relief, or relief under 5 U. S. C. §706. (2) Whether such limitations are subject to forfeiture. (3) Whether this Court has jurisdiction to consider the merits of the questions presented in this case.

Chief Justice Roberts’s majority opinion explained that Section 1252(f)(1) does not limit the Supreme Court’s appellate jurisdiction:

As we recently held in Garland v. Aleman Gonzalez (2022), section 1252(f )(1) “generally prohibits lower courts from entering injunctions that order federal officials to take or to refrain from taking actions to enforce, implement, or otherwise carry out the specified statutory provisions.” The District Court’s injunction in this case violated that provision. But that fact simply presents us with the following question: whether section 1252(f )(1) deprives this Court of jurisdiction to reach the merits of an appeal, where the lower court entered a form of relief barred by that provision.

Moreover, Chief Justice Roberts held that Section 1252(f)(1) did not deprive the district court of subject matter jurisdiction–it only deprived the district court the power to issue an injunction.

The question, then, is whether section 1252(f)(1) strips the lower courts of subject matter jurisdiction over these claims. The parties agree that the answer to that question is no, and so do we. That is because section 1252(f )(1) withdraws a district court’s “jurisdiction or authority” to grant a particular form of relief. It does not deprive the lower courts of all subject matter jurisdiction over claims brought under sections 1221 through 1232 of the INA. . . . Section 1252(f)(1) bears no indication that lower courts lack power to hear any claim brought under sections 1221 through 1232. If Congress had wanted the provision to have that effect, it could have said so in words far simpler than those that it wrote. But Congress instead provided that lower courts would lack jurisdiction to “enjoin or restrain the operation of ” the relevant provisions, and it included that language in a provision whose title—”Limit on injunctive relief “—makes clear the narrowness of its scope.

Roberts clarifies in a footnote that the Court is not deciding whether the District Court has jurisdiction to enter other remedies, such as the power to “hold unlawful and set aside” under Section 706 of the APA:

At our request, the parties briefed several additional questions regarding the operation of section 1252(f )(1), namely, whether its limitation on “jurisdiction or authority” is subject to forfeiture and whether that limitation extends to other specific remedies, such as declaratory relief and relief under section 706 of the APA. We express no view on those questions.

During oral argument, the Solicitor General stated that Section 1252(f)(1) does bar APA review.

Roberts’s majority opinion was joined by Justices Breyer, Sotomayor, Kagan, and Kavanaugh.

Justice Barrett wrote a dissent, which was joined–in relevant part–by Justices Thomas, Alito, and Gorsuch. Barrett faults the majority for splitting the baby, holding that the district court had subject matter jurisdiction, but lacked jurisdiction to issue an injunction:

Acting on a compressed timeline, it embraces a theory of §1252(f )(1) that—so far as I can tell—no court of appeals has ever adopted: that §1252(f )(1) limits only the lower courts’ remedial authority, not their subject-matter jurisdiction.

First, Barrett observes that Congress could choose to link the court’s subject matter jurisdiction to the court’s remedial authority.

I would think that Congress is free to link a court’s subject-matter jurisdiction to its remedial authority. That is not so different from an amount-in-controversy requirement, which conditions a district court’s ability to address the merits on the relief that the plaintiff seeks. See, e.g., 28 U. S. C. §1332 (district courts have subject-matter jurisdiction over diversity cases only when the amount in controversy exceeds $75,000).

Second, Barrett highlights the redressability element of Article III. Generally, if a district court cannot issue a remedy, then there is no Article III jurisdiction.

And the redressability requirement of Article III itself establishes a tie between jurisdiction and remedies, because a court’s inability to order effective relief deprives it of jurisdiction to decide the merits of a question otherwise within its competence. See, e.g., California v. Texas (2021) (slip op., at 7) (redressability “consider[s] the relationship between ‘the judicial relief requested’ and the ‘injury’ suffered”); Los Angeles v. Lyons (1983) (failure to allege sufficient likelihood of future injury deprives a federal courtof Article III “jurisdiction to entertain [the count] of the complaint” seeking injunctive relief ).

Recall that Barrett asked about redressability during oral arguments in California v. Texas. (I remember.) This issue is definitely on Barrett’s radar.

Third, Barrett recognizes that Roberts’s majority opinion did not decide the 706 “set aside” issue:

[The Court] avoids a position on whether § 1252(f)(1) prevents a lower court from vacating or setting aside an agency action under the Administrative ProcedureAct. See 5 U. S. C. § 706(2). Not that I fault the Court for holding back. Quite the contrary: The questions surrounding §1252(f )(1) are complex and deserve more attention than we can give them in this posture.

Fourth, Barrett explains that the majority’s jurisdictional holding would affect several pending immigration cases:

This would all matter less if the jurisdictional question were easy or unimportant—but it is neither. The Court’s opinion papers over difficult issues, as I will discuss below, and its jurisdictional holding is likely to affect many cases. See, e.g., Texas v. Biden, ___ F. Supp. 3d ___, ___, 2022 WL 658579, *14 (ND Tex., Mar. 4, 2022) (§1252(f )(1) does not bar Texas’ claim that the Federal Government is wrongly refusing to detain noncitizens to determine if they have COVID–19); Defendants’ Opposition to Plaintiffs’ Motion for Temporary Restraining Order 8–9 in Arizona v. CDC, Civ. No. 6:22–cv–00885 (WD La., Apr. 22, 2022) (arguing that §1252(f )(1) prohibits a district court from constraining the Federal Government’s removal discretion in litigation challenging termination of Title 42 order).

It would not take long for the Section 706 issue to be teed up before the Court.

On Thursday, the Court issued an order in United States v. Texas. Here, the plaintiff states challenged new DHS guidelines concerning enforcement of immigration laws. In this case, the District Court “set aside” the Biden Administration’s new policy under Section 706. The Fifth Circuit panel (Jones, Clement, Engelhardt) declined to stay that order. The Solicitor General filed an emergency application for a stay. In the alternative, the SG asked the Court to treat the application as a petition for certiorari before judgment. (Sam Bray wrote about the application here.)

Five members of the Court voted to deny the application: Chief Justice Roberts, and Justices Thomas, Alito, Gorsuch, and Kavanaugh. As Jon Alder observed, for the first time, four female Justices were in dissent: Justices Sotomayor, Kagan, Barrett, and Jackson. By my count, this is the third time since Doe v. Mills, that Justice Barrett voted to grant emergency relief on the shadow docket. There is a single common-denominator in these three cases, Austin v. U.S. Navy Seals, NetChoice v. Paxton, and now United States v. Texas: Barrett voted to reverse a conservative Fifth Circuit panel on which Judge Edith Jones presided. When Judge Jones grants an injunction pending appeal, Justice Barrett stays the injunction; when Judge Jones declines to stay an injunction, Justice Barrett stays the injunction. Causation, or correlation, I’ll let you decide. Justice Kavanaugh, by contrast, who joined Doe v. Mills, denied relief in United States v. Texas.

The Court did treat the Solicitor General’s application as a petition for certiorari before judgment, granted the petition, and scheduled oral argument for December. And the Court ordered the parties to argue three issues:

1. Whether the state plaintiffs have Article III standing to challenge the Department of Homeland Security’s Guidelines for the Enforcement of Civil Immigration Law;

2. Whether the Guidelines are contrary to 8 U.S.C. §1226(c) or 8 U.S.C. §1231(a), or otherwise violate the Administrative Procedure Act; and

3. Whether 8 U.S.C. §1252(f)(1) prevents the entry of an order to “hold unlawful and set aside” the Guidelines under 5 U.S.C. §706(2).

The first question is closely linked to the third question. And the third question presented is the precise issue that Chief Justice Roberts ducked, and Justice Barrett flagged: does Section 1252(f)(1) deprive the district court of jurisdiction to “set aside’ the rule under Section 706 of the APA? And if the district court cannot issue any remedy–Aleman Gonzalez already ruled out injunctive relief–how can the plaintiffs have Article III jurisdiction? Or stated differently, can it be the case that district courts cannot issue nationwide injunctions, but they can issue nationwide vacaturs under Section 706? If the Court resolves the first or third questions, then there is no need to decide the second question.

Now five Justices already voted to deny a stay of the injunction. That vote could suggest that a majority of the Court thinks the plaintiffs do have standing. But it is not certain that we can draw this inference. The fact that the Court moved this case from the shadow docket to the rocket docket suggests we will soon have a ruling. And it would be chaotic for the administration to put this policy into effect while the case is pending.

Finally, any ruling here will not simply help the right or the left. If the Court holds that Section 1252(f)(1) deprives federal district courts in Texas of jurisdiction to set aside Biden-era immigration policies, then that provision would also deprive federal district courts in California of jurisdiction to set aside DeSantis-era immigration policies. Really, if the Court rules against Texas on the third question presented, then the ability of trial courts to issue nationwide vacaturs in many immigration cases fades. Moreover, if the Court scales back state-theories of standing–Massachusetts v. EPA is ripe for erosion–the number of nationwide injunctions would necessarily decrease. (I’m still amazed the Court made it through four years of Trump and almost two years of Biden without deciding the nationwide injunction issue.) This case is very important–not just for this term, but for many future cases.

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