While observing en banc oral arguments today at the Fifth Circuit, it was hard not to have the driving riff of Led Zeppelin’s “Immigrant Song” on repeat in my head, because today was definitely immigration day. It also was a day of driving riffs, because three out of the four advocates today were the best so far in this en banc week. Give a listen to the oral argument recordings from the Fifth Circuit website and marvel at some great work.
First up was the argument in U.S. v. Texas, 24-50149, a rehearing of the panel (Richman, Oldham, Ramirez; Oldham, J., dissenting) opinion affirming the preliminary injunction of Texas’s S.B.4, which provided an independent state prohibition on noncitizens unlawfully entering or reentering Texas and empowered state judges to issue removal orders.
Judge Ho near the beginning of Texas’s argument asked whether the Court could pick and choose whether to rule in Texas’s favor (reversing the injunctive relief) on standing grounds, on political question grounds, or on the merits of the preemption argument, “any theory that gets you the win,” essentially seeking guidance on whether there was a necessary order of operations. Regardless, the entirety of the argument was fairly evenly divided between standing (organizational standing of Las Americas, primarily) and preemption, with no questions or arguments on political question. While Judge Douglas asked whether any ruling on the merits would be a mere advisory opinion if there were no standing, Judge Ho then asked if that was not precisely what the Court did in its Abbott decision last year.
When Judge Higginson started in with questions, the argument headed into a recess while Court personnel fixed an audio problem that had caused the speakers in the courtroom to fill with static and that interrupted the live feed. Judge Higginson quipped, “I probably missed the perfect answer to my question.”
When the petitioners took up their argument, they were met by a barrage of hypotheticals as to standing by Judge Jones, wanting to know how the burden on Las Americas by S.B.4 was different than what the ACLU does, or the SPLC, or Baker & Botts or any other large law firm that advises clients about changing areas of the law. Judge Wilson asked whether the diversion of resources claimed by Las Americas was the same as what the Supreme Court said would be enough in Alliance. Then Judge Oldham questioned the underlying premise of Las Americas’s resources-diversion argument, asking how many immigrants Las Americas directly represented in the last year (as opposed to serving as a referral or information source).
Judge Jones asked counsel for Las Americas what the constitutional right to seek asylum was, that was being impacted for Las Americas’s clients to such an extent as to create a change and diversion of resources (Las Americas’s counsel noted that the source was the Supremacy Clause, feeding into the preemption argument as to why the state should not impede on the exclusive federal realm of immigration). She then asked if that argument couldn’t be made on an individual basis post-enforcement by someone who has had a removal order issued against them under S.B.4. And Judge Elrod asked whether, if standing turned on the newness of the area of immigration regulation causing a change in use of resources, why the same could not have been the basis for standing of objecting healthcare providers in the abortion pill cases. Counsel for Las Americas responded that the key distinction was the attenuation of the chain of causation.
Because of the intertwined strains of questions and jurisprudence on immigration and on standing have some pull and tension against each other, a hunch on the en banc Court’s outcome on this case is particularly cloudy; but I’ll give it a shot: From the looks of things in argument, my hunch is Judges Elrod, Jones, Smith, Ho, Duncan, Engelhardt, Oldham, and Wilson favoring Texas and reversal of the injunction of S.B.4, some on standing and some on the merits of the preemption argument; Judges Stewart, Richman, Graves, Haynes, Higginson, Douglas, and Ramirez in favor of upholding the injunctive relief for Las Americas; and no hunch as to Judges Southwick and Willett.
The second case argued on today’s en banc immigration docket was W.M.M. v. Trump, 25-10534, which, because of deportation of other named plaintiffs, is likely now A.R.P. v. Trump. The panel (Southwick, Oldham, Ramirez; Ramirez, J., dissenting in part; Oldham, J., dissenting), on remand from the U.S. Supreme Court’s grant of temporary restraining order halting deportation of the Venezuelan named plaintiffs in the putative class of petitioners under the Alien Enemies Act, granted preliminary injunction blocking removal of the petitioners.
The Court had essentially two lines of questions for the advocates. The first was the scope of allowable judicial review under the Alien Enemies Act; and the second was the status of the last named plaintiff for purposes of having power to order any injunctive relief.
As to the first, Judge Ho asked if it wasn’t weird to say that the courts have to defer to Congress on the AEA’s trigger from a declaration of war, but didn’t have to defer to the President on the triggers for invasion or predatory incursion; he noted this particularly where the Congressional declaration of war was an inherently political action, asking the advocates for the constitutional distinction between the power to engage in military action and the power to declare war. Judge Engelhardt asked what the limiting principal was in determining what portions of a presidential declaration under the AEA were reviewable and which were not. Judge Higginson asked if the mechanism for determining judicial review was in sec. 23 of the AEA, which contains the authority for the order of removal of an immigrant under the AEA, such that courts must review whether the legal precepts for removal are present. Judge Southwick elicited from the assistant A.G. arguing for the administration that the Court does have a function to engage in legal interpretation under the AEA, then asked why the courts should not then have the power to apply their interpretation of the legal incidents of what an “invasion” or “predatory incursion” were under the Act. “Are we just construing it for the fun of it?” he asked.
While Judge Southwick asked whether there shouldn’t be room for review beyond simply political accountability of the President, Judge Ho proposed that the accountability was for the voters, that “the judiciary isn’t the only solution.” Judge Willett jumped in with his first questions of the entire en banc session, asking, short of judicial factfinding, what are the limits, if any, on the president’s use of the AEA. He also asked the assistant AG what makes a “predatory incursion” distinct from an “invasion” under the Act. Then Chief Judge Elrod asked what review would be available if a presidential proclamation under the Act were fanciful on its face, declaring an invasion of British musicians to invade the young minds of Americans, with a proclamation that the British Prime Minister were officially sanctioning it; would the judiciary be able to review and look behind such a fanciful invocation of the AEA? When Judge Duncan commented that the Chief was referring to the Beatles, Judge Jones noted that the law cannot concern itself with trivialities. Chief Judge Elrod said that her point was that the assistant AG’s argument was that, even with the fanciful, the judiciary’s role was still to “defer defer defer.”
On the more logistical issue of the presence of a plaintiff for whom injunctive relief could be granted, Chief Judge Elrod reminded the advocates that the Supreme Court in its remand order had assigned the Fifth Circuit with the “homework” to review all of the preliminary injunction factors for the named plaintiffs specifically, not the putative class of Venezuelan immigrants generally, observing that the plaintiffs were down to one named plaintiff, A.R.P., and asked what his status was. The ACLU counsel was unable to answer, as they had been unable to reach that plaintiff before argument, and Chief Judge Elrod directed both sides to provide updated information on A.R.P.’s status. Judge Oldham returned to that question, asking ACLU counsel, “You have one named plaintiff in the country and you did not communicate with him before today’s argument?” then scoffed audibly and gesticulated forcefully while making an aside to Judge Duncan. Chief Judge Elrod acknowledged ACLU counsel’s explanations for the difficulty counsel had in contacting and communicating with immigration detainees and commented that she understood that to be the basis of the ancillary challenge to the government’s notice provisions for immigrants slated for AEA removal.
Based on the questions and prior opinion, my hunch is that Judges Jones, Smith, Ho, Duncan, Engelhardt, Oldham, and Wilson would favor reversal of the injunctive relief as to the AEA declaration; Judges Stewart, Southwick, Richman, Graves, Haynes, Higginson, Willett, Douglas, and Ramirez would favor affirming the injunctive relief; and Chief Judge Elrod may dissent in part on the basis of remanding for findings as to the status of the named plaintiff to determine if there is a named plaintiff remaining with standing for injunctive relief.
As I cautioned with yesterday’s hunches, there is a distinct possibility I could be wrong in many portions of my play of this fool’s game of en banc tea-leaf reading.
Take the Fifth 