TALLAHASSEE — Florida and the federal government squared off this week in an appeals court about whether the state could legally challenge Biden administration policies that led to undocumented immigrants being released from detention.
Lawyers for the two sides filed briefs late Monday at the 11th U.S. Circuit Court of Appeals. Gov. Ron DeSantis and Florida Attorney General Ashley Moody have made a high-profile issue of criticizing the Biden administration’s handling of immigration issues, but the U.S. Supreme Court ruled last year that Texas and Louisiana did not have legal standing to challenge certain immigration policies.
In light of the Supreme Court ruling, the Atlanta-based appeals court ordered Florida and the federal government to file briefs about whether the state had standing to challenge what are known as “parole” policies.
Lawyers in Moody’s office wrote that the Supreme Court case does not bar Florida’s challenge, largely because the Texas and Louisiana case focused on issues related to arresting migrants — while the Florida challenge involves paroling people who have already been detained.
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“Texas (the Texas and Louisiana case) involved the executive branch’s historic discretion to enforce federal law,” the state’s 35-page brief said. “But here, the challenged policies are much more than a mere failure to enforce the law. They instead confer temporary legal status and other statutory benefits in the form of parole.”
But in their 34-page brief, U.S. Department of Justice lawyers called such a distinction “immaterial” and said both cases “concern policies vested with discretion.”
“Here, DHS’s (the U.S. Department of Homeland Security’s) parole policies reflected decisions about how to best use its limited resources to process and detain noncitizens who unlawfully entered the United States during particular periods of time,” the Justice Department brief said.
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Florida filed a lawsuit in September 2021 challenging Biden administration policies. The lawsuit ultimately led to two rulings last year by U.S. District Judge T. Kent Wetherell that said policies, known as “Parole Plus Alternatives to Detention” and “Parole with Conditions,” violated federal law.
The Pensacola-based judge issued the rulings before the Supreme Court decided the Texas and Louisiana case. Justice Department attorneys, who have long argued that Florida did not have legal standing, took the dispute to the Atlanta-based appeals court.
After the Supreme Court decision, the appeals court in February directed Wetherell to consider again whether he had “jurisdiction” in the Florida challenge. Plaintiffs must show standing before judges have jurisdiction to decide cases. So if Florida didn’t have standing, Wetherell couldn’t have ruled in its favor.
Wetherell, a former state appellate judge who was appointed to the federal bench by former President Donald Trump, quickly issued a decision supporting his earlier rulings that Florida had standing. Like the state’s arguments this week, he drew distinctions between the issues in the Florida and Texas lawsuits.
“The policies at issue in these (Florida) cases do not involve arrest or prosecution, but rather explain how DHS (the U.S. Department of Homeland Security) will exercise its statutory ‘parole’ authority … with respect to aliens who are already in DHS custody after arriving at the southwest border,” Wetherell wrote. “Nothing in Texas (the Supreme Court opinion) held that federal courts cannot adjudicate the validity of non-detention/parole policies like these.”
After Wetherell’s decision, the appeals court last month ordered additional briefs.
Florida also contends that it has standing because of costs associated with migrants coming to the state. As an example, it said the state faces costs for educating additional children.
“The district court (Wetherell) correctly concluded that DHS’s policies authorizing the mass parole of aliens into Florida impose financial costs on Florida as well as injure Florida’s quasi-sovereign interest in its territory and the presence and movement of unauthorized aliens within its borders,” the state’s brief said.
But Justice Department lawyers wrote that Florida “alleges an indirect injury and failed to provide sufficient evidence of harm.”
“Following (the Supreme Court decision in the Texas and Louisiana case), it is no longer sufficient for a state to argue that a change in federal policy may increase population and indirectly change state expenditures with respect to driver’s licenses, education, health care, or law enforcement,” the Justice Department brief said.
“Finding standing whenever a change in federal policy would cause some incidental costs to states would allow any state to challenge any change in immigration policy, and improperly draw courts into generalized grievances on behalf of states that were unable to obtain their preferred policy outcomes through the political process.”
