Immigration Matters is a recurring series by César Cuauhtémoc García Hernández that analyzes the court’s immigration docket, highlighting emerging legal questions about new policy and enforcement practices.
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Following Trump v. CASA, which upended the use of nationwide injunctions in litigation over the Trump administration’s birthright-citizenship order, the Supreme Court declined, in a one-sentence order, an emergency appeal by Florida seeking to further narrow how district court judges block laws that they believe are illegal. The justices’ order at least suggests that the court’s decision in CASA should not be interpreted as a blanket invitation to ask the court to further constrain judges and, in the process, hand more power to elected officials.
In February, echoing other Republican-led states, Florida legislators enacted a law that criminalizes entry into the state by unauthorized migrants. Under the new law, judges must sentence a first-time offender to at least nine months in prison. An immigrants’ rights organization, the Florida Immigrant Coalition, along with an advocacy group and two unauthorized migrants, sued the Florida attorney general and several state prosecutors. They argued that the law, SB 4-C, violates the supremacy clause of the Constitution because it conflicts with federal immigration law. Because Congress has created a detailed web of legal requirements for residence in the United States, along with various penalties for violating immigration law, the Constitution leaves no room for states to punish migrants separately from what the federal government might do, the challengers contended.
Charged with defending the state’s laws, Florida attorney general James Uthmeier responded that the Constitution does not preempt SB 4-C because the state law closely matches federal law – what legal scholars call the mirror-image theory of immigration law. States that have attempted to enact their own immigration laws in recent years by contending that they may implement criminal immigration laws predicated on federal statutes have made similar claims, albeit with limited success. As the Supreme Court explained in its 2012 decision holding that most of Arizona’s attempt to mirror federal immigration law was unconstitutional, “[t]he federal power to determine immigration policy is well settled,” and cannot be usurped by the states.
Agreeing that the law is likely unconstitutional, U.S. District Judge Kathleen Williams stopped the law from going into effect, issuing a temporary restraining order and, later, a preliminary injunction. In addition to blocking the state attorney general and his staff from enforcing SB 4-C, Williams instructed Uthmeier to inform law enforcement agencies throughout Florida that they could not enforce it. Uthmeier did so initially, only to follow up days later by telling law enforcement officers that, in his view, Williams had no authority to block them from implementing SB 4-C because they are not defendants in the lawsuit. That (unsurprisingly) did not sit well with Williams, who found Uthmeier in contempt of her order.
On appeal, Uthmeier divided the state’s argument into two parts. Digging into the mirror image theory, he claimed that the Constitution makes room for state laws that merely augment federal immigration law. Separately, the state attorney general attacked the scope of the district court’s injunction, arguing that Williams had no power to block law enforcement officers from enforcing SB 4-C because they had not been sued. In his briefs to the U.S. Court of Appeals for the 11th Circuit and then again in his emergency application for a stay to the Supreme Court, Uthmeier devoted substantial attention to the argument that Judge Williams had acted impermissibly. Out of 16 pages of arguments in the state’s brief to the 11th Circuit, eight contend that the injunction is too broad, as do seven of the 26 pages of argument in Uthmeier’s application to the Supreme Court.
Dividing the law’s constitutionality from the district court’s injunction was a reasonable strategic decision given recent moves by the Supreme Court. In the months leading to Uthmeier’s request for emergency relief from the Supreme Court, the justices expressed significant discomfort with district courts’ use of injunctions. By the time that Uthmeier asked the justices to stay Williams’ injunction, the court had already heard oral arguments in Trump v. CASA, the birthright citizenship case.
Instead of homing in on the merits of the president’s birthright citizenship order, the Justice Department’s pleas for relief in CASA focused narrowly on attacking the universal injunctions that had blocked the administration from implementing it. The government argued that district courts could only issue injunctions narrowly drawn to aid the parties directly involved in the litigation. At oral argument, a few justices suggested that they were not inclined to agree with the president’s interpretation of birthright citizenship, but the bulk of their attention was on the legality of the universal injunctions.
The Justice Department’s approach in the CASA litigation illustrated a pathway by which a legally dubious policy could survive while giving its supporters a political victory. By downplaying the president’s executive order in favor of highlighting the actions that judges took, the Justice Department successfully shifted attention away from the order’s likely illegality. In the Justice Department’s telling, the only errors committed in the legal skirmish over birthright citizenship were made by judges whose decisions swept too broadly.
Defending SB 4-C, Florida thus followed the Justice Department’s lead. The state’s litigation strategy would have allowed SB 4-C to go into effect despite its constitutional problems. Had the Supreme Court agreed that the district court improperly enjoined law enforcement officers because they are not parties to the lawsuit, local police and sheriffs’ departments could have begun enforcing the state law’s criminal provisions. Indeed, some Florida law enforcement agencies had already arrested people suspected of being present in Florida in violation of federal immigration law, including at least one U.S. citizen. To block all enforcement of the law under the state’s proposed approach, advocates would have had to sue each of the 328 police and sheriffs’ offices in the state. This would have marked a significant victory for the state. But, in its brief order, the court declined to provide Florida with such a victory.
Having lost its attempt to unwind the practical effect of the district court’s injunction by narrowing the scope of Williams’ order, Florida now faces a tough climb to defend the law’s merits.
It is impossible to know with any certainty why the justices declined the state’s request. The court’s one-sentence order, common in emergency requests for stays of injunctions, does not hint at the justices’ reasoning. With no recorded dissents, all that is certain is that none of the justices was willing to publicly vote in Florida’s favor. Their decision to leave the district court’s order untouched, however, halts any further erosion of courts’ injunctive power, suggesting that, for now at least, the justices are not ready to constrain their lower court colleagues any further. As a result, federal district courts remain an important check on state elected officials who try to rebalance power away from politically insulated judges and towards their political counterparts.
