Fla. Governor to Send Border Hawk Ashley Moody to the Senate

Florida Gov. Ron DeSantis this week tapped his state’s attorney general, Ashley Moody, to replace Marco Rubio, President-elect Trump’s nominee for Secretary of State, in the Senate. It’s a clear signal DeSantis won’t stop opposing illegal immigration just because President Biden is leaving, because Moody is a border hawk — and without her leadership, the migrant crisis of the last four years would have been a whole lot worse than the disaster it’s already been.

Moody became attorney general in 2019, when she replaced Pam Bondi — Trump’s nominee for attorney general — after Bondi was term-limited out of the role. Floridians must have liked what she was doing in that position, because she won reelection in 2022 with more than 60 percent of the vote, a vast upgrade from the 6-point victory she achieved the first time around. 

She brought plenty of experience to the job, moving from private practice after law school to the U.S. Attorney’s Office, where she prosecuted drug, firearm, and fraud cases. And then, in 2006 at the age of 31, she became the youngest judge in Florida, winning election to the Thirteenth Judicial Circuit in Hillsborough County. 

Florida v. U.S.

While I trust that others who bother to measure and assess such things may have different opinions, by my lights the most important case Moody shepherded as attorney general was Florida v. U.S. (Florida I).

Florida I began in September 2021, when Moody and her staff filed a complaint challenging the Biden-Harris administration’s migrant border-release policies. 

State complaints against those policies were hardly a novelty, but what differentiated Moody’s case from others was the doggedness with which the state engaged in discovery against Biden’s DHS. 

Moody and her staff alleged that the Biden-Harris administration was actively failing to comply with a congressional mandate to detain all illegal migrants at the Southwest border.

The matter was assigned to federal district court Judge T. Kent Wetherell II, and in March 2023, after 17 months of discovery, arguments, and pleadings, he found the Biden-Harris administration was employing an “overarching non-detention policy” in violation of the Immigration and Nationality Act (INA). 

The court concluded, however, that this overarching non-detention scheme was not “discrete agency action” subject to his review, though he did conclude that one aspect of it, known as “Parole+ATD”, was a discrete agency action that he could review under the Administrative Procedure Act (APA), which governs challenges to administrative rulemaking.

Parole+ATD was a process under which the Biden DHS released hundreds of thousands of illegal migrants on “parole” under section 212(d)(5)(A) of the INA with “alternatives to detention” (ATD) — things like ankle monitors, GPS tracking, or check-ins on the SmartLINK app.

Migrants released on Parole+ATD, however, were not issued Notices to Appear (NTAs) — the charging documents in removal proceedings — or given court dates before they were sent out the door, for no other reason than administrative convenience.

Simply put, the court found that aliens could be released on Parole+ATD without NTAs in about 15 to 20 minutes, whereas issuing them NTAs and giving them court dates before they were released took between two and 2.5 hours.

The idea was that those migrants would later report to a local ICE office to be served with their NTAs and hearing dates, but as the court determined, such service would have been a near-impossible task given the hundreds of thousands of migrants involved, and would have cost ICE tens of millions of dollars and taken decades to accomplish.

Judge Wetherell, concluding that Parole+ATD violated both the INA and the APA, vacated the policy in an opinion and order issued on March 8, 2023.

Florida II

Biden’s DHS wasn’t happy with the decision, but it complied with the court’s order — though not for long.

On May 10, 2023 — the day before CDC Title 42 orders directing the expulsion of illegal migrants at the Southwest border were scheduled to expire — Border Patrol Chief Raul Ortiz issued a memo directing his agents to release apprehended migrants under a new policy called “Parole with Conditions in Limited Circumstances Prior to Issuance of a Charging Document” (Parole with Conditions).

As the title suggests, like Parole+ATD, Ortiz’s plan was to release migrants under Parole with Conditions before they were served with NTAs or given hearing dates; thus, the policy suffered from the exact same defects as Parole+ATD (not surprising given the two policies were virtually identical).

That day, Florida filed a new complaint in a case denominated Florida v. Mayorkas (Florida II) seeking a temporary restraining order (TRO) to block Parole with Conditions, and by chance, it was assigned to Judge Wetherell.

In that complaint, Moody and her staff complained DHS’s new plan was “unquestionably cynical, in bad faith, and contrary to both the [INA] and the APA. It is also, unfortunately, consistent with the game of whack-a-mole DHS has been playing with Florida and this Court for almost two years”. 

Tell us what you really think, Madam Attorney General. 

In any event, Judge Wetherell granted the request, concluding on May 11 that a TRO was in order given that:

the challenged policy appears to be materially indistinguishable from the Parole+ATD policy vacated in [Florida I] — both in its purpose (reducing overcrowding at border patrol facilities) and manner of operation (releasing aliens into the country without first issuing a charging document placing them in immigration proceedings and simply directing the aliens to report to ICE within a specified period for further processing).

The case is still pending on the government’s appeal, but expect the incoming Trump administration to put the kibosh on the whole affair fairly quickly.

Why It Matters

Had these orders not been issued, the Biden-Harris administration almost definitely would have continued releasing illegal border migrants on parole until noon on Inauguration Day. 

As is, Biden’s DHS allowed some 2.2 million aliens to enter the country on parole, and the majority of them were not served with NTAs and not placed into removal proceedings at the time they were released. A significant number of them still haven’t been.

Had Florida not brought those suits, Judge Wetherell would not have shut down Parole+ATD, and the Biden-Harris almost definitely would have used it as its primary process for border releases. 

As it is, the administration released nearly 500,000 illegal migrants between March and September on their own recognizance in FY 2023, and more than 860,000 others in FY 2024. But unlike the hundreds of thousands who were released on Parole+ATD and Parole with Conditions, those aliens were issued NTAs and were placed into removal proceedings. 

There’s little likelihood that all those cases will be completed when Trump takes office, but some of those migrants can be deported because they are under final orders of removal – either because their cases are done or, more likely, they failed to appear in court. For the rest, however, at least the process has begun. 

Trump’s DHS would be digging itself out of an even bigger hole if it had to go out and find those 1.3 million illegal migrants, serve them with NTAs, and wait until all those removal hearings were done to deport the unsuccessful ones.

Whether you believe that Florida I was a victory for the cause of justice largely depends on whether you think border security is a good thing and that ICE shouldn’t have to hit the streets to place hundreds of thousands of released migrants into removal proceedings. If those are your beliefs, Ashley Moody is your hero — and she’s soon to be Florida’s junior senator.