In September 2019, federal district judge Ketanji Brown Jackson issued a 122-page opinion, with an elaborate table of contents, in support of her preliminary injunction (in Make the Road New York v. McAleenan) barring the Department of Homeland Security from enforcing its decision expanding the reach of its expedited-removal process to the statutory limit. Jackson ruled (among other things) that plaintiffs had sufficiently established that her court had jurisdiction over the challenge to the decision; that Congress “did not intend to commit implementation of the expedited removal process it authorized entirely to agency discretion”; that plaintiffs had procedural claims under the Administrative Procedure Act; and that the DHS decision was arbitrary and capricious.
In a decision issued today, the D.C. Circuit reverses Judge Jackson. All three judges on the panel agree that Jackson got things very wrong. They differ only on which error requires vacating the injunction.
In her majority opinion, Judge Patricia Millett, joined by Judge Harry Edwards, holds that Congress did indeed commit to DHS’s “sole and unreviewable discretion”—that’s the statutory language—the judgment whether to expand expedited removal to the statutory limit. The DHS decision is therefore not subject to review under the APA, and Jackson’s preliminary injunction was improper.
In a separate opinion, Judge Neomi Rao determines that Jackson made an earlier threshold error in exercising any jurisdiction over plaintiffs’ challenge. In her 24-page opinion, Rao explains that courts “must interpret jurisdiction-stripping statutes to mean what they say” and that federal immigration law “unambiguously strips the federal courts of jurisdiction to review” the DHS decision. In addition, Rao explains, even if jurisdiction did exist, federal immigration law “categorically prohibits injunctive relief absent proceedings against an individual alien.” (Rao’s opinion is styled a dissent, rather than a concurrence in the judgment, because she would require that the district court dismiss the case for lack of jurisdiction.)
This isn’t the first time that Jackson has written a 100-page-plus opinion in support of an attention-getting injunction that she has issued on behalf of liberal plaintiffs, only to have an ideologically diverse D.C. Circuit panel overturn her for messing up a threshold issue.