As we celebrate the just-issued preliminary injunction blocking Texas’s anti-immigrant SB4, see below (and our microsite) for other February developments in extremist litigation challenging immigrant-inclusive policies.
Judge Kacsmaryk denies motion to dismiss TX suit over asylum rule in 9-page opinion
In early February, Judge Kacsmaryk issued an opinion denying the Department of Justice’s motion to dismiss Texas’s suit challenging DHS’s 2022 asylum regulation that (among other things) streamlines some asylum adjudications to address the backlog of such claims. DOJ’s motion—which followed more than 15 months of discovery on Texas’s standing—involved many difficult issues of law and fact, but Judge Kacsmaryk’s nine-page opinion did not get into any of them; instead, it is a collection of boilerplate conclusions agreeing with Texas in all respects. DOJ has said it will be filing a motion for reconsideration next week.
FL suits over detaining asylum seekers bounce between district court and 11th Circuit
In mid-February, the Eleventh Circuit remanded (sent back) both Florida cases seeking more detention of asylum seekers to the district court with instructions to consider whether the Supreme Court’s USA v. Texas opinion (which was issued after the decisions on appeal) changes the district judge’s conclusion that Florida has standing to challenge the detention policies. Just three days later, and without any briefing from the parties, Judge Wetherell issued an opinion saying that nothing in USA v. Texas alters his conclusion that Florida has standing (although a few days later he issued a “corrected” opinion cleaning up typos and changing wording throughout his original opinion). The cases will now return to the Eleventh Circuit for resolution.
Judge rules TX can’t challenge ATD appropriation (but blocks protections for pregnant TX state employees)
On Tuesday, Judge Hendrix entered final judgment in Texas’s suit claiming that the Consolidated Appropriations Act of 2023 violated the Constitution’s Quorum Clause (see our past reporting for more background), and it was a mixed bag. On the one hand, he held that TX did not prove that it was injured by a $20 million appropriation to DHS’s Alternatives to Detention program, and so lacked standing to challenge it. On the other hand, Judge Hendrix permanently enjoined federal officials from applying the Pregnant Workers Fairness Act to Texas (meaning TX state employees are no longer covered by it) based on his conclusion that the $1.7 trillion spending bill to which it was attached was enacted in violation of the Quorum Clause. It’s hard to imagine DOJ not appealing this one.
As always, we’ll keep you posted on these and other cases.
Thanks for reading,
Laura Flores
Skadden Fellow
