Ketanji Brown Jackson’s actual judicial views missing from Senate hearing: Turley
Constitutional attorney Jonathan Turley sizes up Supreme Court nominee Ketanji Brown Jackson’s testimony at her confirmation hearing on ‘The Story.’
Judge Ketanji Brown Jackson on Tuesday was quizzed about her rulings on a key case related to illegal immigration — one of a number of high-profile immigration rulings she has made in recent years.
Jackson was in front of the Senate Judiciary Committee for day two of her Supreme Court confirmation hearing, and was asked by Sen. Chuck Grassley, R-Iowa., about a 2019 ruling in which Jackson blocked a Trump-era effort to expand the use of expedited removal of illegal immigrants.
The Department of Homeland Security had sought to expand the scope of expedited removal from those who had been in the country for 14 days and were close to the border, to anyone anywhere in the country who had been in the country illegally for under two years.
Immigration advocates sued in an attempt to block the rule, and Jackson issued a preliminary injunction blocking the expansion. The Biden administration recently formally rescinded the rule.
In his questioning, Grassley noted that Congress had given DHS “sole and unreviewable discretion” to decide whether expedited removal could be applied, and that Jackson herself had noted that it had “sole and unreviewable discretion.”
“But you still went on to review [DHS’s] decision, in fact you issued a nationwide injunction blocking [DHS] from removing illegal immigrants who had been in the country in less than two years,” he said.
“Could you please explain why a federal court could review something Congress called unreviewable?” he said.
Supreme Court nominee Ketanji Brown Jackson testifies during her Senate Judiciary Committee confirmation hearing on Capitol Hill in Washington, Tuesday, March 22, 2022. (AP Photo/Andrew Harnik)
(AP Photo/Andrew Harnik)
Jackson responded by saying that the case was not about the determination itself, but the procedures the agency took to make it, and whether it clashed with the Administrative Procedures Act (APA) — which gives rules on how such moves should be implemented, including conducting an analysis of the potential impacts of the rule change. A number of Biden and Trump-era moves on immigration have been struck down for falling foul of the APA.
“DHS gets the sole ability to make that decision [about expedited removal]. DHS makes that decision. And it’s final,” she said. “What wasn’t clear to me based on that language was whether Congress intended to preclude its procedural requirements for the exercise of agency discretion.”
She said that the statute giving DHS the power to expand expedited removal also assumes that it will follow the APA — which DHS did not do in this situation.
“I thought, as I say, in my opinion, that Congress intended for the APA to apply because it had not excluded it, which it had done expressly in other parts of the [Immigration and Nationality Act.] It had not excluded it here. And it made sense to require the agency to use its expertise,” she said.
Jackson’s ruling was ultimately overruled by the D.C. Circuit, which ruled that Congress gave DHS ample discretion to expand the process without having to comply with the APA.
Jackson’s rulings did not go against the Trump administration on the subject of border security and immigration, however. In an opinion the same year, Jackson dismissed a suit by environmental groups that the Trump border wall construction had ignored environmental laws.
“This Court finds that Congress has spoken in no uncertain terms about the limits of judicial review when it comes to legal claims that challenge on non-constitutional grounds the DHS Secretary’s authority to waive otherwise-applicable legal requirements with respect to the construction of border barriers,” she said.
In a 2020 ruling, Jackson upheld two Trump administration programs — Prompt Asylum Claim Review (“PACR”) and the Humanitarian Asylum Review Process” (HARP) — that sought to speed up the asylum process for those coming across the border and claiming asylum.
The Associated Press contributed to this report.
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