Less than a week after President Joe Biden took office, a Trump-appointed judge issued an interim order, which will likely be the first of many court orders by Republican judges trying to block Biden’s policies. The same judge extended that interim order on Tuesday, effectively blocking the Biden administration’s attempt to pause deportation for several months.
On January 20, the first day of the Biden administration, then-acting Homeland Security Secretary David Pekoske issued a memorandum suspending most deportations for 100 days while the new administration held an “Overview of Immigration Policies and Practices.”
On Jan. 26, Trump-appointed federal court in Texas issued an interim injunction blocking the deportation break. Then, on Tuesday night, Judge Drew Tipton issued an opinion that effectively extended his initial life order to a 100-day deportation break. The new opinion in Texas v. United States is 105 pages long and aims to offer a legal justification for Tipton’s actions.
But to Tipton Texas the opinion is a fiasco of legal reasoning. He claims power in a case which the judiciary has no right to hear at all. And this contradicts numerous decisions of the Supreme Court – one of which states that “the executive has the discretion to abandon the undertaking” at “every stage” of the deportation process.
An important part of Tipton’s opinion reduces the complex web of immigration laws, court decisions, regulations, and long-standing agency practices in overturning a single word, a word that the Supreme Court explicitly warns Tipton not to read the way he reads it.
And yet while Tipton’s actions through Texas are difficult to defend by law, it is quite likely that his order will remain in force. Tipton’s latest order will appeal to the United States Court of Appeals for the fifth round, one of the most conservative courts in the country, where Republican appointments outnumber Democrats by 12-5 among active court judges – and then possibly to the Supreme Court, where Republicans hold 6-3 majority.
As this case involves a policy that had to expire in 100 days, it is also possible that Pekoske’s memorandum will expire on its own terms before the judges have fully considered the case.
But Tipton’s orders are likely to be the first of many conservative federal judges to rely on questionable legal motives to undermine Biden’s policies.
Prosecutor’s assessment, briefly explained
The biggest mistake in Tipton’s Texas the order is that they give a short term to a doctrine known as ‘prosecutorial discretion’, which usually allows law enforcement agencies – and politicians who control the application of the law – to decide not to apply a specific law against a specific person.
If you’ve ever been stopped for speeding and released with a warning, then the cop who pulled you in has exercised that kind of judgment. Similarly, several district attorneys and other senior prosecutors have announced that their services will no longer prosecute juvenile marijuana offenders – and will instead spend the limited resources of their services to prosecute other crimes. Courts usually do not intervene when a politician announces such a decision not to take certain types of enforcement action.
In fact, the Supreme Court has ordered judges to be reluctant to exercise a second presumption of prosecutorial discretion by federal officials — whether those decisions are made by a federal prosecutor or by one of the highest executive officials.
As the Supreme Court ruled in Heckler v. Chani (1985), “The Agency’s decision not to take enforcement action shall be deemed to be immune from judicial review.” Moreover, this presumption is particularly strong in the context of immigration. The court explained in Arizona v. United States (2012) that “a key feature of the relocation system is the broad discretion exercised by immigration officials”. So the presumption against judicial review of the executive’s decision not to deport someone is particularly strong.
The executive branch, led by Biden, could at any time abandon its attempt to deport an immigrant. As Judge Antonin Skalia explains in Renault v. US-Arab Anti-Discrimination Committee (1999), at each stage of the deportation process, “the executive has the discretion to abandon the undertaking.” And he can do so for a number of reasons, including “humanitarian reasons or just for his own convenience.”
Nor should the courts intervene just because the executive decides not to apply a specific law against a large group of people, instead of distributing mercy to a person at a time.
This problem occurred in USA v. Texas, another case in which the state of Texas sued the federal government to block the immigration policy of the president of the democrats. That other thing Texas the case reached the Supreme Court in 2016, although the Court divided into 4-4 on whether to uphold the Obama administration’s policy of allowing millions of undocumented immigrants to live and work in the United States while allowing them to participate in programs such as Medicare and Social Security.
In particular, in this 2016 Texas case, the state of Texas acknowledged that the executive has broad powers not to deport a large group of immigrants who are legally entitled to be removed. The state’s 2016 case report emphasizes that a lower court order blocking the Obama administration’s policies “does not affect the executive’s right” and does not “require the executive to remove anyone.” Texas even acknowledged that the “executive director was at all times free to issue ‘low priority’ ID cards to aliens”, thus identifying specific undocumented immigrants whom he chose not to deport.
In other words, Judge Tipton had to dismiss the newer ones Texas case shortly after landing on his desk. The Biden administration’s decision to suspend deportations while it decides on its long-term immigration policy priorities cannot be reviewed by a federal court.
Instead of what Tipton did
Instead of following Supreme Court decisions such as Heckler and ArizonaTipton instead sticks to a single word in immigration law – the word “must” – and argues that the word justifies his order.
As noted above, Heckler considered that decisions of non-exercise of executive power were “presumed to be immune from judicial review”, but this presumption could be overcome in unusual cases. Among other things, the presumption can be overcome when “substantive law provides guidelines to be followed by the agency in the exercise of its implementing powers”. If Congress decides to “limit the exercise of the agency’s executive powers,” then those restrictions can usually be imposed by a federal court.
Tipton cites a provision in federal immigration law that states “unless otherwise provided in this section when ordering the removal of an alien, the Attorney General will remove the alien from the United States within 90 days” in order to substantiated its conclusion that Congress had placed restrictions on the judgment of the Biden administration. The essence of Tipton’s opinion is that, at least in this context, the word “must” is a mandatory command. And so the administration has no choice but to remove some immigrants who have already been ordered to be deported.
There are a number of problems with this analysis. One is that the same law on which Tipton relies also provides that “if the alien does not leave or is removed within the removal period, the alien awaiting removal will be subject to supervision in accordance with the provisions prescribed by the Attorney General. “. So Congress apparently expected there to be cases where an immigrant who was the subject of a removal order would not be removed after 90 days.
Another problem with Tipton’s order is that there is a whole law that allows law enforcement officials to grant “deferred action” to an undocumented immigrant – essentially an executive decision that the immigrant will not be deported for at least some time – and the Power of the executive to postpone action has been approved by both Congress and the Supreme Court.
In fact, when Scalia writes about the broad power of the executive to abandon a particular deportation procedure Renault, he expressly referred to deferred action.
A third problem with Tipton’s order, a problem he at least acknowledges in his view, is that the Supreme Court has long warned judges not to read federal laws to impose mandatory government obligations, even when those laws use hard language like the world. “As the Supreme Court ruled in Railway company against Hecht (1877), “Unlike the government, the word ‘must’, when used in the statutes, must be interpreted as ‘may’, unless there is a contrary intention.”
In other words, Tipton places too much emphasis on a single word he has read out of context, and does so without paying due respect to a long line of Supreme Court cases that advise him not to read the word strictly.
Tipton’s order could call into question the two most conservative judges of the Supreme Court.
A little over a year ago, the Supreme Court issued an interim order in Ministry of National Security v. New York, which has revived the Trump administration ‘s policy of keeping many low – income immigrants out of the country.
Although the full court did not explain why it had reinstated this policy (the vote was 5-4, by party line), Judge Neil Gorsuh issued a brief statement criticizing a practice known as “national orders”, and his opinion was shared by colleagues conservative justice Clarence Thomas.
This is an extremely convincing opinion! In essence, Gorsukh warned that a single federal lawsuit should not have the power to block federal policy on a national basis. “It is difficult to see how the court can still act as a judicial role in resolving” individual cases, “Gorsukh wrote when issuing such a national order.
As Gorsuch noted, “there are currently more than 1,000 current and senior district court judges sitting in 94 judicial districts and subject to review by 12 regional courts of appeal. If a judge can suspend federal policy across the country, then plaintiffs are likely to “shop for a friendly forum to secure victory across the country” – that is, they are likely to look for a sympathetic judge who is willing to issue an order that most judges will be mocked.
And opponents of a particular policy could potentially get a lot of bites in the apple. As Gorsuch writes, in a world of national orders, “the government’s hope of implementing some new policy can be countered by the long chances of swinging right, turning a 94 to 0 victory in the district courts into a 12 to 0 victory in the appellate courts. “Court orders across the country could mean that if the government suffers a ‘loss,’ then ‘politics is on the ice.’
Tipton’s order to suspend the 100-day deportation break applies “on a national basis,” so it is precisely this kind of unrestricted order that Gorshukh warns about in his new York opinion. In other words, the question for judges like Gorsuch is whether they will have the courage of their convictions now that a democratic president will take advantage of a solution that limits the scope of court orders blocking federal policies.