Can Biden Refuse to Enforce the Law?

October 15, 2021

IRLI urges full Fifth Circuit to overturn three-judge panel

WASHINGTON—Yesterday, the Immigration Reform Law Institute (IRLI) filed a friend-of-the-court brief in the Fifth Circuit Court of Appeals in support of a petition by the states of Texas and Louisiana to vacate an erroneous opinion by a three-judge panel of that court stating that the Biden administration can refuse to initiate removal proceedings against illegal aliens and criminal aliens whenever it wants.

The panel of three judges that so stated was convened to decide a motion by the administration to stay, or suspend, a district court’s injunction of the administration’s enforcement priorities, which constituted an abandonment of immigration law enforcement, and which the court had found unlawful on numerous grounds. (IRLI had filed a brief with the district court in support of that injunction.) The motions panel, though keeping part of the injunction in place, suspended the part of it requiring the administration to initiate removal proceedings against illegal and criminal aliens as mandated by federal law. The panel opined that the executive branch always has discretion not to prosecute someone, and that Congress had not meant to “interfere” with that discretion in this area.

In its brief, IRLI brings up a number of statutory provisions the panel had not mentioned, which show that Congress did intend to limit executive discretion in this area. IRLI also points out that Biden’s priorities actually override the discretion of immigration officers, vested in them by law, to remove or detain illegal and criminal aliens, by making officers first to go through a time-consuming and futile pre-approval process. IRLI urges the full Fifth Circuit to convene en banc (that is, the full court) and strike down the panel opinion, in order to remove the bad influence it would otherwise have on immigration law around the country.    

“It is preposterous that the administration may simply ignore the law here and not even initiate removal proceedings against illegal and criminal aliens it apprehends, but instead just let them go,” said Dale L. Wilcox, executive director and general counsel of IRLI. “Of course, the views of a motions panel about the merits of a case are not binding precedent. But this opinion, if not vacated, will spread like a virus, carried by anti-borders attorneys, through activist courts around the country, which will cite it as persuasive authority and duplicate its reasoning. We hope the full Fifth Circuit sees what is at stake, vacates this opinion, and issues a new one correcting this egregious legal error and keeping the district court’s full injunction in place.”

The case is Texas, Louisiana v. United States, No. 21-40618 (Fifth Circuit).