Florida Attorney General Ashley Moody is leading a 15-state coalition of attorneys general in filing an amicus brief in the Supreme Court of the United States in support of intervenor states that they say seek to prevent the Biden administration from weaponizing sue-and-settle tactics to avoid accountability for the border crisis.
“Derelict President Biden and failed Border Czar Harris have been manipulative since day one in their plan to demolish our border,” Moody said. “In fact, a federal judge in a Florida case even said that their actions were ‘akin to posting a flashing ‘come in, we're open' sign.'
“I, along with my colleagues, have once again filed a brief in support of intervenor states seeking to prevent collusive settlements between this administration and like-minded, open-border activist groups that are attempting to influence border-security policy behind closed doors.”
Moody
| File photo
The coalition says the Biden administration appears to have abandoned its defense of the “Circumvention of Lawful Pathways” rule, a rule that allows the U.S. Department of Homeland Security to turn away some asylum seekers, and is instead pursuing a settlement agreement with open-border organizations.
Following the revelation of a potential settlement, the attorneys general from Alabama, Georgia, Louisiana, Kansas and West Virginia filed a motion to intervene. After a denial in the U.S. Court of Appeals for the Ninth Circuit, the intervenor states petitioned SCOTUS for certiorari.
Now, Moody and the coalition have filed another amicus brief in support of the motion to intervene.
“In at least two cases previously before this court, the federal government has attempted to leverage unfavorable judgments against it to repeal disfavored rules without following the Administrative Procedure Act’s notice-and-comment process,” the coalition states in its brief. “Multiple Justices have expressed concerns with that practice.
“In this case, the government has signaled that it is once again playing similar games. Specifically, the government has announced ‘settlement discussions’ with groups politically aligned with the current administration regarding the Circumvention of Lawful Pathways Rule.
“And despite the risk of a collusive settlement, the Ninth Circuit denied the states’ motion to intervene to protect their distinct interest in stemming the tide of unlawful migration into this country over the southern border that the current administration has let loose.
“Those states have now petitioned this court for certiorari. Amici curiae states of Florida, Arkansas, Idaho, Indiana, Iowa, Kentucky, Mississippi, Nebraska, Ohio, South Carolina, South Dakota, Tennessee, Texas, Utah and Wyoming share the petitioning states’ interest in ensuring that the federal government plays by the rules. States have an interest in defending rules that protect their sovereign and financial interests in combating unlawful immigration. The amici states therefore respectfully submit this brief in support of the states’ petition.”
The coalition says the federal government, to mitigate the border crisis, promulgated the Circumvention of Lawful Pathways Rule, which creates a presumption that certain inadmissible aliens are not eligible for asylum.
“That rule is thus significant, as the vast majority of those who unlawfully cross the southern border do so to take advantage of the United States’ generous asylum laws,” the coalition brief states. “Several organizational plaintiffs nonetheless sought to enjoin and vacate the rule. The federal government actively defended it in the district court and on appeal, until, suddenly, the government jointly moved with the plaintiffs to stay the case pending settlement negotiations.
“Kansas, Alabama, Georgia, Louisiana, and West Virginia moved to intervene to defend the rule, but the Ninth Circuit denied their motion, holding that they lacked a legally protected interest supporting intervention.
“As the states’ certiorari petition shows, that conclusion wrongly conflated the requirements for standing to sue with the requirements for having a legally protectable interest justifying intervention as a defendant. The petition presents an exceptionally important question, which affects states that desire to defend federal policies that protect their interests when the federal government shirks its duty to do so.”
Moody is joined on the brief by the attorneys general from Arkansas, Idaho, Indiana, Iowa, Kentucky, Mississippi, Nebraska, Ohio, South Carolina, South Dakota, Tennessee, Texas, Utah and Wyoming.
U.S. Supreme Court case number 23-1353