Amicus Curiae Brief — Markwayne Mullin, Secretary of Homeland Security, et al., Petitioners v. Refugee and Immigrant Center for Education and Legal Services, et al.

No. 26-239

In the Supreme Court of the United States

_______________

MARKWAYNE MULLIN, SECRETARY OF THE U.S.

DEPARTMENT OF HOMELAND SECURITY, IN HIS OFFICIAL

CAPACITY, ET AL.,

Petitioners,

v.

REFUGEE AND IMMIGRANT CENTER FOR EDUCATION

AND LEGAL SERVICES, ET AL.,

Respondents.

_______________

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_________________________________

BRIEF OF IOWA AND 21 OTHER STATES

AS AMICI CURIAE IN SUPPORT OF

GRANTING THE PETITION

______________________________________________

BRENNA BIRD

Attorney General of Iowa

ERIC WESSAN

Solicitor General

Counsel of Record

1305 E Walnut Street

Des Moines, IA 50319

(515) 823- 9117

eric.wessan@ag.iowa.gov

Counsel for Amici Curiae

(additional counsel listed in addendum)

i

QUESTIONS PRESENTED

1. Whether Presidential Proclamation No. 10,888,

90 Fed. Reg. 8333 (Jan. 29, 2025), and its

implementing guidance—which suspended the entry

of certain aliens and precluded their access to

statutory provisions that would enable their continued

presence in the country, including asylum—are

lawful.

2. Whether 8 U.S.C. § 1252(f )(1) bars the classwide

relief entered by the district court.

3. Whether the class definition comports with

Article III and Rule 23 of the Federal Rules of Civil

Procedure.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ................................... i

TABLE OF CONTENTS ........................................ii

TABLE OF AUTHORITIES ................................ iii

INTEREST OF AMICI CURIAE ........................... 1

INTRODUCTION

AND

SUMMARY

OF

ARGUMENT ................................................................ 3

ARGUMENT .......................................................... 5

I. The Panel Left a Constitutional Guarantee

Owed to the States with No Sovereign

Empowered to Keep It. ................................ 5

A.

Article IV, § 4 protects against invasion

to the United States and secures the States. ....... 5

B.

Under current circuit law, Amici States

cannot protect themselves. ................................... 7

C.

The result is a vacuum that only this

Court can close. ..................................................... 8

II. The panel inverted the interpretive rules

governing delegations of authority over

entry and exclusion. .................................... 9

III.The conflict with Huisha-Huisha is squarely

presented and will not resolve itself. ........ 11

IV. The costs of the decision below fall on amici,

and they are neither speculative nor

recoverable. ................................................ 12

CONCLUSION ..................................................... 14

ADDITIONAL ATTORNEYS GENERAL ........... 1a

iii

TABLE OF AUTHORITIES

Cases

Department of Homeland Security v. Thuraissigiam,

591 U.S. 103 (2020) .......................................... 10, 12

Fiallo v. Bell,

430 U.S. 787 (1977) ................................................ 10

Harisiades v. Shaughnessy,

342 U.S. 580 (1952) .................................................. 9

Huisha-Huisha v. Mayorkas,

27 F.4th 718 (D.C. Cir. 2022) ............................ 4, 11

In Iowa Migrant Movement for J. v. Bird,

157 F.4th 904 (8th Cir. 2025) .............................. 2, 7

INS v. Aguirre-Aguirre,

526 U.S. 415 (1999) ................................................ 11

Iowa Migrant Movement for J. v. Bird,

166 F.4th 688 (8th Cir. 2026) (en banc) .......... 2, 7, 8

Kansas v. Garcia,

589 U.S. 191 (2020) .................................................. 7

Moncrieffe v. Holder,

569 U.S. 184 (2013) .......................................... 11, 12

Sale v. Haitian Ctrs. Council, Inc.,

509 U.S. 155 (1993) ................................................ 10

Trump v. Hawaii,

585 U.S. 667 (2018) .......................................... 4, 8, 9

United States ex rel. Knauff v. Shaughnessy,

338 U.S. 537 (1950) .................................................. 9

Statutes

8 U.S.C. § 1158 .......................................................... 14

8 U.S.C. § 1182 ................................................ 8, 11, 12

8 U.S.C. § 1185 .......................................................... 12

8 U.S.C. § 1229a .......................................................... 4

8 U.S.C. § 1326 ........................................................ 2, 9

iv

42 U.S.C. § 265 .......................................................... 14

U.S. Const., art. IV, § 4 ................................... 1, 4, 7, 8

Iowa Code ch. 718C ..................................................... 9

INTEREST OF AMICI CURIAE 1

On his first day in office, President Trump

issued a declaration intended to protect States from

the ongoing invasion along our nation’s southern

border. Amici curiae are the State of Iowa and 21 other

States supporting that declaration. Amici have three

primary interests in this case.

First, amici are the constitutional beneficiaries

of the duty the Proclamation discharged. Article IV,

§ 4 of the Constitution explains that “[t]he United

States . . . shall protect each of [the States] against

Invasion.”

That promise runs to the States by name, and

it was extended to them as a term of Union. See The

Federalist No. 43, at 271–72 (James Madison) (Clinton

Rossiter ed., 1961) (protection against invasion); The

Federalist No. 41, at 252 (James Madison) (security

against foreign danger is “an avowed and essential

object of the American Union”).

Proclamation 10888 is titled Guaranteeing the

States Protection Against Invasion, and it invokes that

obligation in terms. 90 Fed. Reg. 8333, 8334–35 (Jan.

20, 2025). The decision below holds that the principal

statutory instrument the President used to keep that

promise may not lawfully be used that way. Amici are

not bystanders to that holding. They are its subjects.

Second, amici absorb the costs of unlawful

entry, and they absorb them without recourse. States

and their subdivisions fund emergency medical care,

K–12 education, corrections and jail beds only

Pursuant to Rule 37.2, amici provided timely

notice of their intent to file this brief to all parties.

1

2

fractionally offset by federal reimbursement, indigent

defense, and child-welfare placements. They also bear

the human cost of the narcotics that move through an

unsecured border. In Iowa, illegally manufactured

fentanyl was involved in 49% of all overdose deaths. 2

None of that is recoverable from the United States. No

cause of action lies, and no sovereign immunity has

been waived. Amici’s only remedy is a federal

Executive able to act.

Third, and most urgently, amici have mostly

been told that they may not act for themselves. In

Iowa Migrant Movement for J. v. Bird, 157 F.4th 904

(8th Cir. 2025), reh’g and reh’g en banc denied (8th Cir.

Feb. 4, 2026), the Eighth Circuit held that Iowa’s

illegal-reentry statute, a law that tracks 8 U.S.C. §

1326(a) nearly word for word, is preempted in every

one of its applications, and it affirmed a preliminary

injunction against the whole statute. Id. at 919–27.

That decision is the governing law of the circuit

in which Iowa sits, and comparable holdings bind

some other amici. Alongside the decision here, it

produces the condition Judge Stras identified in

dissenting from the denial of rehearing en banc. Asked

who is left to address “the admission and exclusion of

foreign nationals,” he answered: “More and more, the

answer seems to be nobody. Not the federal

government, not the states, nor anyone else.” Iowa

Migrant Movement for J. v. Bird, 166 F.4th 688, 694

(8th Cir. 2026) (en banc) (Stras, J., dissenting).

2 Iowa Dep’t of Health & Human Servs., Iowa Overdose

Deaths: Data to Inform Prevention (Aug. 2025) (reporting State

Unintentional Drug Overdose Reporting System data for 2020–

2023), https://hhs.iowa.gov/media/16963/download.

3

That is why the undersigned States of Iowa and

21 additional States file this amicus in support of

Applicants seeking to stay the district court’s decision.

The question raised by this petition is one of vital

importance.

INTRODUCTION AND SUMMARY OF

ARGUMENT

This case has been litigated as an exercise in

statutory construction, and the petition ably explains

why the panel’s construction is wrong. Amici write to

identify what the decision below does to the

constitutional structure—and to the States that

structure was designed to protect.

The Proclamation’s suspension of entry is not

challenged here. Pet. App. 22a (“The Proclamation

invokes the President's authority under Section

1182(f), but that section authorizes a President to

suspend only the ‘entry’ of foreign individuals into the

United States.”). Every party agrees that the

President lawfully closed the door. The panel held only

that he may not make that closure effective: an alien

who defies and succeeds in crossing acquires, by the

act of evasion, statutory entitlements that delay his

departure by months or years. Those are entitlements

that the alien who presents himself lawfully at a port

of entry does not have. The panel thus converted a

valid exclusion order into an invitation for

circumvention.

That holding matters to amici for a reason that

has nothing to do with the fine points of 8 U.S.C.

§ 1229a. Article IV, § 4 obliges the United States to

protect the States against invasion. The President

invoked that obligation by name and exercised

4

delegated statutory authority to discharge it. The

panel held he may not. And under current circuit law,

amici may not fill the gap themselves. The panel’s

decision thus leaves a constitutional guarantee with

no one empowered to keep it.

Three points follow, and each independently

warrants review.

First, the panel inverted the interpretive rules

that govern delegations of authority over the entry

and exclusion of aliens. This Court has held that

§ 1182(f) “exudes deference to the President in every

clause.” Trump v. Hawaii, 585 U.S. 667, 684 (2018).

The panel demanded that the President identify

express authorization for every measure necessary to

give an entry suspension practical effect, and resolved

statutory silence against him. In a domain the

Constitution commits to the political branches and in

service of a duty the Constitution owes the States, that

default is backwards.

Second, the decision cannot be reconciled with

Huisha-Huisha v. Mayorkas, 27 F.4th 718 (D.C. Cir.

2022), which held that the discretionary character of

asylum permits the Executive to foreclose the

application process categorically and in advance.

Three members of the D.C. Circuit have said as much.

Pet. App. 136a–39a (Millett, J.); id. at 185a (Katsas,

J.); id. at 80a-83a (Walker, J., dissenting in part).

Because challenges to national immigration policy are

concentrated in the D.C. Circuit, the conflict will not

percolate.

Third, the practical consequences are severe,

immediate, and borne by amici. The record reflects a

93% decline in Border Patrol encounters over the 465

5

days following the Proclamation. That huge

achievement for President Trump is expressed in

being the lowest levels since the 1960s. Joint Appendix

at 66-67, 81, Refugee & Immigrant Ctr. for Educ. &

Legal Servs. v. Noem, No. 25-5243 (D.C. Cir. filed Aug.

22, 2025) (“DCJA”). The decision below unwinds that

momentous achievement. Whatever the correct

answer to the statutory question, the cost of getting it

wrong falls on the States.

The petition should be granted.

ARGUMENT

I.

THE PANEL LEFT A CONSTITUTIONAL

GUARANTEE OWED TO THE STATES WITH NO

SOVEREIGN EMPOWERED TO KEEP IT.

A. Article IV, § 4 protects against invasion

to the United States and secures the

States.

The Constitution does not treat protecting

against invasion as a discretionary federal service.

“The United States shall guarantee to every State in

this Union a Republican Form of Government, and

shall protect each of them against Invasion.” U.S.

Const. art. IV, § 4 (emphasis added). The verb is

mandatory, and the beneficiary is identified.

That was the point of the clause. The Framers

understood surrendering State authority over

external defense must be conditional on a federal

undertaking to supply it. Madison explained that

protection against invasion “is due from every society

to the parts composing it,” The Federalist No. 43,

supra, at 272, and identified “[s]ecurity against

foreign danger” as “an avowed and essential object of

6

the American Union,” The Federalist No. 41, supra, at

252; see also The Federalist No. 3, supra, at 42 (John

Jay). The States gave up the means of self-protection

because the Union promised to protect them. The

guarantee was the consideration in that exchange.

Proclamation 10888 is an exercise of that in

defense of that sovereign assignment. The

Proclamation is captioned Guaranteeing the States

Protection Against Invasion; it finds “that the current

situation at the southern border qualifies as an

invasion”; and it concludes that the entry of “aliens

engaged in the invasion across the southern border is

detrimental to the interests of the United States.” 90

Fed. Reg. at 8334–35. The President was discharging

a duty the Constitution owes to amici.

The panel’s opinion nowhere engages with that.

It construes 8 U.S.C. §§ 1182(f) and 1185(a) as though

they were ordinary grants of administrative authority.

Pet. App. 20a–30a. Or, as the panel said, it read those

sections “to supplant other provisions in the INA that

govern the removal of foreign individuals already

present in the United States.” Pet. App. 20a. Nothing

in the opinion acknowledges that the authority was

invoked in service of a constitutional obligation

running to the States, or that construing the

delegation

narrowly

leaves

that

obligation

unsupported. Oddly, the panel did not cite the

constitutional basis of the Order at all.

A statute enacted against the backdrop of

Article IV, § 4 and invoked to satisfy it should not be

read to defeat it.

7

B. Under current circuit law, Amici States

cannot protect themselves.

If the federal Executive cannot make an entry

suspension effective, the natural question is, “Who

can?” For many amici States, the answer is “Nobody.”

Iowa enacted Iowa Code §§ 718C.1–.10, which

makes it a state crime for an alien who has been

“excluded, deported, or removed from the United

States” to be present in Iowa. Id. § 718C.2(1)(a). The

statute is a near-mirror of the federal illegal-reentry

offense, 8 U.S.C. § 1326(a), and prohibits the same

conduct in nearly the same words. The United States,

for its part, dismissed its own parallel challenge and

represented that Iowa’s law “further[s] the purposes of

federal immigration law.” Brief for the United States

as Amicus Curiae in Support of Rehearing En Banc,

Iowa Migrant Movement for Justice v. Bird, No. 242263 (8th Cir. Nov. 26, 2025)

The Eighth Circuit nonetheless affirmed a

preliminary injunction barring the statute, holding

that plaintiffs were likely to show that “every

application” of Iowa’s law conflicts with federal law.

Iowa Migrant Movement for Justice, 157 F.4th at 919–

27. The panel had ruled out Iowa’s “parallel scheme of

enforcement” wholesale, id. at 922, on reasoning that

“purports to apply conflict preemption, but in truth . . .

more closely resembles field preemption.” Iowa

Migrant Movement for J. v. Bird, 166 F.4th 688, 692

(8th Cir. 2026) (Stras, J., dissenting from denial of

rehearing en banc); see Kansas v. Garcia, 589 U.S. 191,

208 (2020).

The practical effect is what matters here. Under

precedent in the Eighth Circuit, and perhaps other

8

circuits soon, too, amici States may not create parallel

criminal liability for unlawful presence. They may not

order returns. They may not condition entry. Under

currently binding precedent, the federal government

has occupied parts of the immigration field. Amici are

thus reliant on the Constitution’s corresponding

promise that the United States will discharge the

function itself.

C. The result is a vacuum that only this

Court can close.

Put the two holdings side by side. Under the

decision below, the President may suspend entry but

may not deny the entitlements that make evasion of

the suspension worthwhile. Pet. App. 27a-28a. That

means that the suspension operates, in practice, only

against those who comply with it. Under Iowa Migrant

Movement for Justice, amici States may not supply

what the federal Executive has been forbidden to

supply. See 166 F.4th at 692 (Stras, J., dissenting from

denial of rehearing en banc). Neither sovereign may

act. That is an abdication by operation of law.

Judge Stras put the point in terms that require

no elaboration. Asking who is left to exercise “the

admission and exclusion of foreign nationals, a

fundamental sovereign attribute” that is “exercised by

the Government's political departments largely

immune from judicial control,” Id. at 694 (cleaned up)

(quoting Trump v. Hawaii, 585 U.S. at 702 (citation

omitted)), he answered: “More and more, the answer

seems to be nobody. Not the federal government, not

the states, nor anyone else.” Id.

The courts of appeals cannot resolve that by

themselves. The two halves of the problem sit in

9

different circuits, and each half is defensible in

isolation. Only this Court sees both. And the vacuum

is not an abstraction: it is filled by cartels and

trafficking organizations that operate in the space

where no sovereign is authorized to act. DCJA at 7273, 81-84.

II.

THE PANEL INVERTED THE INTERPRETIVE

RULES

GOVERNING

DELEGATIONS

AUTHORITY OVER ENTRY AND EXCLUSION.

OF

The panel’s holding rests on a default rule found

nowhere in the INA: unless the INA expressly

authorizes a measure, the Executive may not take it.

That default has no place in this domain.

Section 1182(f) is not a narrow grant. It

authorizes the President, “[w]henever” he “finds” that

the entry of aliens “would be detrimental to the

interests of the United States,” to “suspend the entry

of all aliens or any class of aliens” and to “impose on

the entry of aliens any restrictions he may deem to be

appropriate,” “for such period as he shall deem

necessary.” 8 U.S.C. § 1182(f). This Court has said that

the law “exudes deference to the President in every

clause.” Trump v. Hawaii, 585 U.S. at 684. Section

1185(a)(1) supplies parallel authority over departure

and entry “[u]nless otherwise ordered by the

President.”

Those delegations sit atop a constitutional

foundation. “The exclusion of aliens is a fundamental

act of sovereignty,” one that “is inherent in the

executive power to control the foreign affairs of the

nation.” United States ex rel. Knauff v. Shaughnessy,

338 U.S. 537, 542 (1950); see Harisiades v.

Shaughnessy, 342 U.S. 580, 588–89 (1952) (“any policy

10

toward aliens is . . . exclusively entrusted to the

political branches of government”); Fiallo v. Bell, 430

U.S. 787, 792 (1977). This Court has accordingly

declined to read immigration statutes as silently

constraining Executive action abroad or at the border.

Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 173–

79 (1993).

The panel reversed that presumption. It

reasoned from the INA’s structure to conclude that

Congress must have withheld from the President any

authority to give an entry suspension operative effect.

Pet. App. 20a. But the logic relied on finding

§ 1229a(a)(3) prohibited the President’s action. That

section applies “[u]nless otherwise specified in this

chapter”—and §§ 1182(f) and 1185(a) are in the same

chapter.

Thus, nothing in the INA says that the

President’s suspension authority yields to the removal

sections. The panel errantly inferred that from silence.

Where Congress delegated such broad power, where

the subject matter is committed to the political

branches, and where the constitutional duty being

discharged this explicit, silence should not be read as

prohibition.

The panel’s entry–removal line also collides

with this Court’s treatment of aliens apprehended

shortly after surreptitious crossing. In Department of

Homeland Security v. Thuraissigiam, 591 U.S. 103

(2020), the Court held that such an alien “is treated as

an ‘applicant for admission’” and stands “on the

threshold.” Id. at 139–40.

The panel’s rule takes the opposite view, and

the incentive it creates is perverse. The alien who

11

honors the suspension is turned away, while the alien

who evades it acquires rights that keep him here. That

asymmetry is not a marginal doctrinal wrinkle.

Evasion is what generates the enforcement,

correctional, medical, and educational obligations that

States pay for.

III.

THE

CONFLICT

SQUARELY

WITH

PRESENTED

RESOLVE ITSELF.

HUISHA-HUISHA

AND

WILL

IS

NOT

The petition shows the conflict with HuishaHuisha, and amici will not belabor it. Two features of

that conflict bear on whether this Court should take

the case now.

First, Huisha-Huisha held that asylum “is a

matter of executive ‘discretion’” and that the

Executive may “exercise that ‘discretion’ by

foreclosing asylum for the specific subset of border

crossers covered by” an entry order, because “if the

asylum decision has already been made . . . those

procedures would be futile.” 27 F.4th at 730–31.

That reasoning rested on the discretionary

character of asylum under 8 U.S.C. § 1158(b)(1)(A)

rather than on any feature of 42 U.S.C. § 265. See INS

v. Aguirre-Aguirre, 526 U.S. 415, 420 (1999);

Moncrieffe v. Holder, 569 U.S. 184, 187 (2013). The

panel confined Huisha-Huisha to the public-health

context anyway. Pet. App. 27a-29a. Three judges of

the same court have said that this cannot be done. Pet.

App. 166a (Millett, J.) (Huisha-Huisha held “that such

categorical and upfront rejections of asylum are

permissible in emergency situations for limited

periods of time”); id. at 285a (Katsas, J., concurring in

part and dissenting in part) (“the same reasoning

12

extends to aliens covered by a section 212(f)

proclamation suspending entry”); id. at 80a-81a

(Walker, J., dissenting in part). A stay panel and a

merits panel of the D.C. Circuit reached opposite

conclusions on the same record and the same

precedent.

The second is that the conflict will not cure

itself. Challenges to national immigration policy are

filed in or funneled to the D.C. Circuit, and the relief

entered here is classwide and effectively national in

reach.

That is reason enough to grant review. It is a

stronger reason when the intracircuit conflict

concerns the scope of the President’s authority to

discharge a constitutional obligation to the States, and

when the practical consequence of leaving it in place

is measured in the terms set out below.

IV.

THE COSTS OF THE DECISION BELOW FALL ON

AMICI, AND THEY ARE NEITHER SPECULATIVE

NOR RECOVERABLE.

The record here documents what the

Proclamation accomplished. In the 465 days from

January 21, 2025 through April 30, 2026, Border

Patrol encounters at the southern border fell 82%

against the equivalent preceding period—the lowest

levels since the 1960s. DCJA 19.

Enforcement actions resulting in release into

the interior dropped from roughly 1,780 per day to

fewer than one. Id. at 167. Resources freed from

processing were redirected to interdiction, yielding

seizures of weapons, explosives, and narcotics and

disrupting trafficking networks, id. at 206-07, and

13

cutting cartel revenue to the point that organizations

were “selling property and firing personnel to account

for loss in fentanyl income,” id. at 31.

Amici are the jurisdictions on the receiving end of

the alternative. In the four years preceding the

Proclamation, federal agents explained that the

“problem has worsened dramatically.” Id. at 7. Those

who were released did not remain at the border. They

dispersed into amici’s counties, school districts,

hospitals, and jails.

The costs are concrete and documented. In Iowa,

illegally manufactured fentanyl was involved in 49%

of overdose deaths, and opioids and stimulants

together accounted for the overwhelming share. 3

Between January 2025 and May 2026, the

Department of Justice has federally charged more

than 260 members and associates of Tren de Aragua—

an organization that established itself in interior

communities during the period of open crossings. 4

Finally, Amici States have no way to recover any of

the costs associated with an open border. There is no

damages remedy against the United States for the

fiscal consequences of an unenforced border, no waiver

of sovereign immunity, and no prospective relief

3

Iowa Dep’t of Health & Human Servs., supra note 1

(illegally manufactured fentanyl involved in 49% of Iowa

overdose

deaths;

opioids

58%;

stimulants

57%;

methamphetamine 49%).

4 See, e.g., Press Release, U.S. Dep’t of Justice, More than 25

Defendants Charged in Nationwide Tren de Aragua Crackdown

Resulting in the Seizure of Over 80 Firearms and Narcotics in

Homeland Security Task Force Investigations (May 11, 2026),

https://perma.cc/8LUG-WBNS.

14

available to a State that has been told its own

enforcement measures are preempted. Amici’s sole

protection is the one the Constitution promised them

and the one the decision below removes.

CONCLUSION

This Court should grant the United States’s

petition for certiorari.

Respectfully submitted,

BRENNA BIRD

Attorney General

State of Iowa

ERIC WESSAN*

Solicitor General

(515) 823- 9177

eric.wessan@ag.iowa.gov

September 23, 2026

*Counsel of Record

APPENDIX

APPENDIX TABLE OF CONTENTS

Page

Additional Counsel .............................................. 1a

1a

ADDITIONAL ATTORNEYS GENERAL

Steve Marshall

Attorney General of

Alabama

Lynn Fitch

Attorney General of

Mississippi

Tim Griffin

Attorney General of

Arkansas

Catherine Hanaway

Attorney General of

Missouri

James Uthmeier

Attorney General of

Florida

Austin Knudsen

Attorney General of

Montana

Chris Carr

Attorney General of

Georgia

Michael T. Hilgers

Attorney General of

Nebraska

Raúl R. Labrador

Attorney General of

Idaho

Andy Wilson

Attorney General of

Ohio

Theodore E. Rokita

Attorney General of

Indiana

Gentner Drummond

Attorney General of

Oklahoma

Kris Kobach

Attorney General of

Kansas

Alan Wilson

Attorney General of

South Carolina

Rusell M. Coleman

Attorney General

Kentucky

Marty Jackley

Attorney General of

South Dakota

Liz Murrill

Attorney General of

Louisiana

of

Jonathan Skrmetti

Attorney General of

Tennessee

2a

Ken Paxton

Attorney General

Texas

John B. McCuskey

Attorney General of

West Virginia

Keith G. Kautz

Attorney General of

Wyoming

of