Over the weekend, the Department of Homeland Security posted the following news release on its webpage:
The Department of Homeland Security (DHS) secured [on Friday] a legal victory in its effort to terminate parole for more than 530,000 illegal aliens from Cuba, Haiti, Nicaragua, and Venezuela (CHNV) who were released into the country by the Biden Administration. The U.S. Supreme Court issued a 7-2 order, staying a District Court’s order pending appeal with the U.S. Court of Appeals for the First Circuit.
With this decision, DHS can once again start removing illegal aliens under the disastrous CHNV parole programs as the case progresses. This order comes after an activist judge ruled that DHS could not outright end the CHNV program.
Although it is hard to get past the gratuitously harsh tone and vacuous criticism of the Biden administration and the district court judge in the case, it is not hard to see why DHS found Friday’s ruling worth noting; people on both sides of the immigration battles seem to agree that termination of CHNV could have major consequences for those individuals involved, and for the nation more generally.
On the merits of the challenge to President Donald Trump’s power to end the CHNV program that President Joseph Biden had created—a program under which, according to one summary, “citizens of these four countries, and their immediate family members, could be paroled into the United States for a period of up to two years if a person in the US agreed to financially support them”—the Trump administration would, at least at first blush, seem to have a pretty good argument. Putting aside any arguments about detrimental reliance (and it is hard to see how a parolee is worse off having benefited from the program for some time than she would have been had the program never been instituted at all), if President Biden had the executive power to, on his own, create the program, then President Trump should, as a constitutional matter, have the power to terminate it. Constitutionally speaking, you generally can’t have it both ways (not that the Supreme Court has always been consistent about that). And even the judge whose injunction preventing DHS from ending the program entirely was undone on Friday seemed to understand this point to some extent; her temporary ruling appears to be not that the current administration must allow parolees to remain here the for their entire two years, but only that parole must be revoked individually rather than categorically for all participants. Why that would be so as a matter of law I’m really not quite sure.
Because the merits seemed pretty strong for DHS, it is not surprising that Justice Ketanji Brown Jackson’s dissent (joined by Justice Sonia Sotomayor) did not really challenge the notion that the administration had a least a fair chance of getting the Justices to ultimately grant review in the case and to rule in DHS’s favor when they did. Indeed, Justice Jackson acknowledged that “parole is discretionary [i.e., not required] by statute,” and she was willing, for purposes of her dissent, to “assum[e] a likelihood that the law permits the Government to terminate parole grants in th[e] fashion [it seeks].” She nonetheless argued that the majority of the Court had “plainly botched” (hard-hitting criticism) its job by allowing the government to prevail without adequately demonstrating that it (or the public) would suffer “irreparable harm” if the district court injunction were to remain in effect.
Justice Jackson is certainly right (and the law is clear) that any party applying for relief in the Supreme Court for a stay of a lower court ruling must show, in addition to a fair chance of ultimate success on the merits at the Court, that it is suffering “irreparable harm” on account of the lower court ruling, and that (in close cases) that the equities and public interest are on his side. That is, a demonstration of a likelihood of irreparable injury is a non-negotiable prerequisite for obtaining in the Supreme Court a stay of lower court relief. What, exactly, does “irreparable injury” mean?
Here we need to get into some inside baseball in the legal field (about which I teach and write) known as Remedies. For purposes of Remedies law, an irreparable injury is one for which money damages after-the-fact are not fully adequate to vindicate someone’s rights or interests. The so-called “irreparable injury rule” (IIR) is the traditional requirement that a person seeking an injunction demonstrate that injunctive relief is superior to a money damage remedy. The injunction needn’t be vastly superior; the IIR as framed is a tie-breaking rule: if damages are just as good, then the injury is not irreparable and an injunction isn’t available.
Classic examples of irreparable injuries are loss of real property (since no two parcels are identical and money can never replace a parcel someone has lost), loss of a person’s reputation (since there is no well-operating financial market for reputation and money can’t really replace one’s good name), loss of business opportunities that can’t easily be measured, or damage at the hands of someone who lacks the wherewithal to pay money (since a money damage award that can’t be paid is really just a piece of paper that doesn’t adequately redress any loss.). None of this is to say that when someone is suffering (or is about to suffer) irreparable injury, she can’t pursue a money damage action; oftentimes that’s all that may be left to her if her property or her reputation is already harmed. (In this respect, although damages are imperfect and technically inadequate we do our best with them because in some instances they are better than nothing). Instead it is only to say that when an injury is irreparable, a party is not relegated to seeking damages; she can ask a court to order the other side to stop doing whatever is causing the irreparable harm. As most modern Remedies scholars appreciate, there are very few situations in which the aggrieved party complains of an injury for which markets are so well-functioning and reliable that damages are perfectly adequate; as I teach my students, anytime a party has a legitimate and articulable reason for paying a lawyer to seek an injunction in the first place, the lawyer should be skilled enough to make arguments that satisfy the irreparable injury rule.
So what does all this have to do with the CHNV case? Well, certainly the parolees suffer irreparable harm if they wrongly lose their parole status; money damages (even if such damages were available against the United States, which for various immunity reasons they are not) can’t compensate for things like liberty and peace of mind, and freedom from persecution, all things that parolees reasonably contend are at stake on their side of the balance. Indeed, if the parolees had not made a convincing claim that they have irreparable harms at issue, they wouldn’t have been able to get the district court to issue the preliminary injunction that protects them from categorical elimination of CHNV in the first place.
But what about the United States government? Does it suffer irreparable harm if it is wrongly prevented from enforcing duly enacted immigration laws and executive policies that President Trump wants to vigorously enforce? This is where Justice Jackson took issue with the government’s stay application, and where her reasoning turns out not to be very convincing. She argued:
[The Court] requires next to nothing from the Government with respect to irreparable harm. . . . I would have denied the Government’s application because its harm-related showing is patently insufficient. . . . DHS contends that the District Court’s order prevents it from exercising its prerogatives with respect to immigration and foreign policy, as a general matter. But it does not establish an urgent need to effectuate blanket CHNV parole terminations now, before the courts can determine whether that en masse agency action is lawful. For instance, the agency does not identify any specific national-security threat or foreign-policy problem that will result from respecting extant grants of CHNV parole while this case is pending. Moreover, as the Government admits, DHS retains the ability to terminate CHNV parole on a case-by-case basis should such a particular need arise, consistent with the District Court’s order.
Yet can it really be that the government doesn’t suffer any harm (and whatever harm it suffers would necessarily be irreparable since damages would be hard to measure and parolees wouldn’t have the obligation or wherewithal to pay them in any event) when government is being blocked from enforcing valid (if controversial) laws? Why do we have laws in the first place if their timely enforcement doesn’t generate any societal value? (And if there is social value in enforcement there necessarily must be social loss when enforcement is blocked.) And can it really be that delaying law enforcement to a later date imposes no costs on society? If justice delayed is justice denied for individuals, why is enforcement delayed not enforcement denied for society? To be sure, when the government is enjoined from enforcing its permissible laws, the government may be able to accomplish its proffered goals in other (more expensive and cumbersome) ways, but then (since government moneys aren’t unlimited) the resources that are diverted cannot be used for separate yet important and impossible-to-monetize government objectives (such as health, safety and morals) in other arenas.
In this regard, doesn’t Justice Jackson realize that it would have been laughably easy for the government to say something like “if we don’t remove these folks now and en masse, it will be much harder (and much more expensive) to find and remove all them after we win on the merits, and in the meantime public benefits will have been wrongly expended on them, and the continued presence of parolees that we (the administration) no longer choose to allow (a choice that is within our power) might cost some U.S. citizens their jobs, or that some small number of parolees might commit crimes that cause damage that can never be undone,” and so forth? It is not remotely clear what is gained by requiring the government to state the obvious in order to satisfy the requirement of a likelihood of irreparable harm. Indeed, if the concept of irreparable harm is viewed as asymmetrically as Justice Jackson appears to see it, then the federal government might have a reduced incentive to ever voluntarily confer any provisional benefits on persons (including non-citizens) in the first place, for fear that the benefits can never be easily reconsidered. But government’s ability to reevaluate such policies (when reevaluation is permitted under the Constitution) preserves policy flexibility and promotes government accountability. All of this is likely why Chief Justice John Roberts (quoting former Chief Justice William Rehnquist) has observed, as a categorical matter, “[a]ny time [government] is enjoined by a court from effectuating [valid] statutes enacted by representatives of its people, it suffers a form of irreparable injury.”
To be fair to Justice Jackson’s position, I hasten to add that this language I just quoted from Chief Justice Roberts (and Chief Justice Rehnquist) did not come from a majority Court opinion, but instead came from solo in-chambers writings. And while Justices Clarence Thomas, Samuel Alito and Neil Gorsuch have all subsequently cited to, quoted and associated themselves with that language, I do not know that a fifth Justice of the Court has explicitly adopted that language or reasoning, even though to me the logic seems pretty unassailable for the reasons I describe above. In that regard, I certainly have found no opinion from a majority of Justices that in any way repudiates what Chief Justices Roberts and Rehnquist have stated; the closest direct disagreement to the Roberts/Rehnquist sentiment comes in Justice Jackson’s dissent (joined by Justice Sonia Sotomayor) in the Noem v. Doe case under consideration here. It also bears noting that many U.S. Circuit Court of Appeals (I found cases from the 1st, 3rd, 4th, 5th, 6th, 8th, 9th, 10th, and 11th Circuits) have cited and embraced the Roberts/Rehnquist language and reasoning, and I did not see any Circuit that rejects the Roberts/Rehnquist position.
Justice Jackson’s dissent purports to draw implicit support from a few recent Supreme Court cases in which stays were denied. Per Justice Jackson: “This Court has repeatedly denied similar stay requests from federal agencies in recent years, unmoved by the bald contention that the Government is irreparably harmed whenever its ‘substantial interest in carrying out the President’s policies’ is burdened.” But the two cases she cites provide no support at all, not even implicit support, for her position. In one of them, United States v. Texas, the Court denied the stay without indicating anything about the basis of denial; the stay could have been denied because the United States did not show a likelihood of success on the merits, or because the balance of equities and public interest cut against the stay, not because the government’s allegations of irreparable harm were too cursory or general to satisfy the technical requirement that the applicant show a likelihood of at least some irreparable injury caused by the lower court ruling.
The other case, Biden v. Texas, is a truly inappropriate/unhelpful case for Justice Jackson to cite, for three reasons. First, although Justice Jackson quotes the stay application in that case as asking for a stay based on a generic assertion that the lower court injunction “imposes a severe and unwarranted burden on Executive authority over immigration policy and foreign affairs . . . ,” the government elsewhere in that stay application provided many more details of irreparable harm. The government’s application asserted that “allowing the district court’s erroneous and extraordinary injunction to take effect . . . would result in irreparable harm to the government. . . [because the] district court’s mandate to abruptly re-impose and maintain [a specific] program under judicial supervision would prejudice the United States’ relations with vital regional partners, severely disrupt its operations at the southern border, and threaten to create a diplomatic and humanitarian crisis.” In particular, the government’s application observed that “[a]n Assistant Secretary at the Department of Homeland Security has attested that complying with [the lower court’s] mandate would be ‘near-impossible. . . . [a]nd a senior State Department official warned that the injunction threatens to create ‘a humanitarian and diplomatic emergency’” with regard to Mexico.
So it quite strange that Justice Jackson (or one of her law clerks) thought that this Biden v. Texas case involved a “bald contention” of irreparable harm suffered by the government. But (and this is the second flaw with Justice Jackson’s invocation of this case) if the degree of specificity alleged by the government in Biden v. Texas is inadequate, and the case is thus an example of the government not discharging its burden, they why, in Biden v. Texas, did Justice Sotomayor dissent and vote to grant the government’s stay? To put the point another way, Justice Sotomayor on Friday joined an opinion that says an earlier recent case is an example of what the government cannot do, and yet in that very case Justice Sotomayor voted in favor of the government.
Third, and finally, Biden v. Texas is a terrible case for Justice Jackson to have cited because the Court majority in that case, in denying the stay, made explicit that the denial was based on a failure to show a likelihood of success on the merits, and (by all appearances) had nothing to do with whether the government’s assertions of irreparable harm were sufficient. Per the stay application denial: “Application (21A21) denied by the Court. The applicants have failed to show a likelihood of success on the claim that the [President’s] memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious.” (As an aside, I should say the Court’s assessment of the merits in that case did not seem very consistent with the majority’s assessment of the merits in the Noem case, so there is a basis for criticizing both the majority and the dissent in Noem.)
Justice Jackson last week in Noem did argue, in the alternative, that the balance of equities cut against DHS—that even if the government had shown some irreparable harm, that harm would be greatly outweighed by the irreparable harm visited on the parolees if the lower court order were lifted. This argument is quite powerful on an emotive level and directly calls into question the humanity and policy wisdom of complete recission of CHNV. But it is an argument whose legal outcome is harder to assess because it requires honestly engaging, rather than disregarding (as Justice Jackson’s first argument does), what is necessarily on the government’s side of the scale, and also requires taking full account of how likely each side is to win on the merits. One of the big problems in the nation’s dysfunctional conversation about immigration law and policy more generally is that neither side in the debate seems willing to recognize that there are legitimate interests and arguments on the opponent’s side; critics of the Trump administration (rightly) push back against the disrespect for constitutionally required due process that the administration routinely exhibits (and that the administration’s supporters ignore), but such critics do not seem to understand (or respect) the fact that large numbers of Americans voted for President Trump in significant part because those voters feel (also with some justification) that the system in place can and should move with more efficiency, that agencies and courts have in many cases insisted on more process than is constitutionally due, and that the delay in implementing constitutionally valid laws and executive policies is far from costless.
If the country is ever going to be able to have a civil and intelligent conversation on these issues, neither side can ignore what the other side has good reason to believe. And if it is important that the Supreme Court be able to model such a conversation (and I think it is), then it is not helpful (even though for rhetorical reasons it can be tempting) for Justices to essentially assert that the government and the public lose nothing when policies that are presumably lawful (and, again, Justice Jackson assumed that DHS was likely to win on the merits) are blocked from prompt implementation. Conceding that the government does lose something irreparable in all (or at least virtually all) such situations (including the immigration setting) may in practice make it harder to uphold injunctions against the government (in part because the likelihood of success on the merits then ends up doing a lot of work), but it is what intellectual honesty requires.
