Wednesday, March 23, 2022
The Senate confirmation hearings on the nomination of Judge Ketanji Brown Jackson to the Supreme Court continued yesterday. At one point, was asked by Senator Chuck Grassley (R-Iowa), about a 2019 ruling in which Jackson enjoined President Trump's effort to expand the use of expedited removal of noncitizens.
John Malcolm on The Daily Signal summarizes the decision in question:
"In Make the Road N.Y. v. McAleenan, immigration advocacy groups brought a pre-enforcement challenge to the Department of Homeland Security secretary’s decision to expand the categories of noncitizens that would be subject to expedited removal from the United States.
Jackson entered a nationwide preliminary injunction to prevent the revised rule from taking effect, concluding that she had jurisdiction to consider the case and that the plaintiffs were likely to succeed on their claim that the agency’s action was arbitrary and capricious and therefore violated the Administrative Procedure Act.
In doing so, she wrote that the government’s argument was `peculiar' and `reeks of bad faith, demonstrates contempt for the authority that the Constitution’s Framers have vested in the judicial branch, and, ultimately, deprives successful plaintiffs of the full measure of the remedy to which they are entitled.'
The D.C. Circuit reversed her injunction. The majority opinion, written by fellow Obama appointee Millett, held that while the district court had jurisdiction to consider the matter, Congress had granted the secretary `sole and unreviewable discretion' on expedited removal determinations.
Judge Neomi Rao dissented, arguing that the district court lacked jurisdiction because the Immigration and Nationality Act bars judicial review of the secretary’s discretionary decisions about expedited removal."
Judge Jackson also was questioned in Day 2 of the confirmation hearings about her representation of detainees at Guantanamo Bay.