Sen. Graham: Jackson Over-Ruled DHS’ ‘Unreviewable Discretion’ in Expedited Removal of Illegal Aliens

Craig Bannister | March 23, 2022 | 2:22pm EDT
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At Wednesday’s Senate confirmation hearing of Supreme Court nominee Judge Ketanji Brown Jackson, Senator Lindsey Graham (R-SC) reminded Judge Brown of one of her rulings that was overturned because a higher court determined that she ignored the crystal-clear intent of a statue.

In a case regarding the administration’s authority to employ expedited removal of illegal aliens, Judge Brown’s ruling ignored a statute’s declaration that the U.S. Attorney General has “sole and unreviewable discretion” in the matter, Sen. Graham explained:

“Here’s what the statute says: ‘The attorney general,’ which is actually the DHS secretary, ‘may apply clauses (i) and (ii) of this subparagraph to any and all aliens described in subclause (II) as designated by the Attorney General. Such designation shall be in the sole and unreviewable discretion of the Attorney General and may be modified at any time.’

“Now, I’ve been in this business for quite a while. What the Trump Administration did was to use the discretion, given to it by statute, in a way different than prior administrations.”

Nonetheless, Judge Brown ruled in favor of an advocacy group that tried to strike down the Trump Administration’s use of its discretionary authority – a ruling that was overturned by the D.C. Circuit Court, which said the statute couldn’t be clearer, Graham noted:

“Here is what the D.C. Circuit Court said about your ruling: ‘There could hardly be a more definitive expression of Congressional intent to leave the decision about the scope of expedited removal within statute or bounds to the secretary’s independent judgement. The forceful phrase of ‘sole and unreviewable discretion,’ by its exceptional terms. ‘Such designation shall be in the sole and unreviewable discretion of the Attorney General and may be modified at any time.’”

“I don’t know how you can tell a judge more clearly that the administration, the agency in question, has discretion to do certain things, within the statute,” Graham said, accusing Judge Brown of ignoring the law in order to advance her personal political agenda:

“So, this is an example to me, and you may not agree, where the plain language of the statute was completely ignored by you. You reached a conclusion because you disagreed with the Trump Administration.”

“That, to me, is Exhibit A of activism,” Sen. Graham said.

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