IRLI Acts to Block Sue and Settle

March 22, 2024

Shows courts administration can’t be trusted to represent America’s interests

WASHINGTON—In both a brief in the Ninth Circuit Court of Appeals and a brief in the federal district court of the District of Columbia, the Immigration Reform Law Institute (IRLI) has supported motions to intervene by Kansas and other states in cases where the Biden Administration has abruptly stopped defending one of the few pro-enforcement rules it has issued—a rule denying asylum to aliens who cross the southern border unlawfully. Instead of defending the rule, the administration suddenly announced it is pursuing settlement talks with the activist plaintiffs in these cases.

These settlements, if they are reached and approved by courts, will result in “consent decrees,” in which the courts will issue their terms as orders binding on the parties indefinitely. Since one of these parties is the United States, these terms, even if drafted by anti-borders activist attorneys, will control the actions of future administrations, even pro-enforcement administrations. In these circumstances, a strong version of the rule may be impossible to resurrect.

To stop that, the states have moved to intervene in the cases to defend the rule and participate in any settlement. As IRLI shows in its briefs, the states have strong interests in border enforcement that will be harmed if the rule is eviscerated or effectively rescinded, and that accordingly give them standing to become parties in these cases.

“We are pleased to support Kansas and the other states in this vital move to block the administration’s apparent effort to make weak enforcement policies permanent through collusive consent decrees,” said Dale L. Wilcox, executive director and general counsel of IRLI. “Sue and settle is an abusive practice that seeks to rule the country via court orders that are not required by the law, but just echo the parties’ wishes, no matter what the voters may think about it. We hope the courts check this practice here, and allow this rule to be defended in court and at the negotiation table.”

The cases are East Bay Sanctuary Covenant v. Biden, No. 23-16032 (Ninth Circuit), and M.A. v. Mayorkas, No. 1:23-cv-01843 (D.D.C.).