RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 22a0144p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ┐ STATE OF ARIZONA; STATE OF MONTANA; STATE OF │ OHIO, │ Plaintiffs-Appellees, │ │ > No. 22-3272 v. │ │ JOSEPH R. BIDEN, in his official capacity as President │ of the United States; UNITED STATES DEPARTMENT OF │ HOMELAND SECURITY; UNITED STATES OF AMERICA; │ ALEJANDRO MAYORKAS, in his official capacity as │ Secretary of Department of Homeland Security; CHRIS │ MAGNUS, in his official capacity as Commissioner of │ United States Customs and Border Protection; TAE D. │ JOHNSON, in his official capacity as Acting Director of │ United States Immigration and Customs Enforcement; │ UR JADDOU, in her official capacity as Director of U.S. │ Citizenship and Immigration Services, │ Defendants-Appellants. │ │ ┘ Appeal from the United States District Court for the Southern District of Ohio at Dayton. No. 3:21-cv-00314—Michael J. Newman, District Judge. Argued: June 10, 2022 Decided and Filed: July 5, 2022 Before: SUTTON, Chief Judge; MOORE and COLE, Circuit Judges. _________________ COUNSEL ARGUED: Daniel Tenny, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. Benjamin M. Flowers, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees. ON BRIEF: Daniel Tenny, Michael Shih, Sean R. Janda, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. Benjamin M. Flowers, Sylvia May Mailman, OFFICE OF THE OHIO ATTORNEY GENERAL, No. 22-3272 Arizona, et al. v. Biden, et al. Page 2 Columbus, Ohio, Drew C. Ensign, OFFICE OF THE ARIZONA ATTORNEY GENERAL, Phoenix, Arizona, Christian B. Corrigan, OFFICE OF THE MONTANA ATTORNEY GENERAL, Helena, Montana, for Appellees. Daniel R. Suvor, O’MELVENY & MYERS LLP, Los Angeles, California, Gina M. D’Andrea, IMMIGRATION REFORM LAW INSTITUTE, Washington, D.C., for Amici Curiae. SUTTON, C.J., delivered the opinion of the court in which MOORE and COLE, JJ., joined. SUTTON, C.J. (pp. 23–28), also delivered a separate concurring opinion. _________________ OPINION _________________ SUTTON, Chief Judge. In September 2021, the Secretary of Homeland Security issued a memorandum to his deputies outlining the Department’s immigration enforcement priorities and policies. Arizona, Montana, and Ohio filed this lawsuit in the Southern District of Ohio to enjoin its implementation. The district court issued a “nationwide preliminary injunction,” applicable to all 50 States, blocking the Department from relying on the priorities and policies in the memorandum in making certain arrest, detention, and removal decisions. Our court granted the National Government’s request for a stay pending appeal and ordered expedited briefing and argument. We now reverse the district court’s grant of preliminary injunctive relief. I. Federal law gives the National Government considerable authority over immigration policy. Consistent with its powers under the U.S. Constitution, U.S. Const. art. I, § 8, cl. 4, Congress has enacted several statutes with respect to detention and removal. As to detention, the Department of Homeland Security “shall take into custody” those “criminal aliens” who are inadmissible or deportable by reason of their having committed certain crimes—including aggravated felonies, firearm offenses, drug …
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