Less than a week after President Joe Biden took office, a Trump-appointed judge issued a temporary order that is likely to be the first of many court orders from Republican judges trying to block Biden’s policies. The same judge extended the temporary order on Tuesday, effectively blocking the Biden government’s attempt to halt deportations for a few months.
On January 20, the first day of the Biden government, then-acting Homeland Security Secretary David Pekoske released a memo temporarily pausing most deportations for 100 days while the new government conducts a “review of the entire policy and practice department. immigration. ”
On January 26, a Trump nominee for a federal court in Texas issued a temporary order blocking this break in deportations. Then, on Tuesday night, Judge Drew Tipton delivered an opinion that effectively extends his original order over the life of the 100-day break in deportations. The new opinion in Texas vs United States it has 105 pages and aims to provide a legal justification for Tipton’s actions.
But Tipton’s Texas opinion is a fiasco of legal reasoning. It claims power over a case that the judiciary has no power to hear in the first place. And it does so in violation of several Supreme Court decisions – one of which states that “the Executive has the power to abandon the effort” in “every step” of the deportation process.
A crucial part of Tipton’s view reduces a complicated web of immigration statutes, court decisions, regulations and long-standing agency practices to a hyper-literal one-word interpretation – a word that the Supreme Court explicitly warned Tipton against reading from way he reads.
However, while Tipton’s actions in Texas they are difficult to defend as a matter of law, it is very likely that their order will be maintained. Tipton’s latest order will appeal to the United States Fifth Circuit Court of Appeals, one of the nation’s most conservative courts, where Republican nominees outnumber Democrats 12-5 among the court’s active judges – and possibly to a Supreme Court. where Republicans hold a 6-3 majority.
In addition, as this case involves a policy that was set to expire after 100 days, it is possible that Pekoske’s memo will expire on its own terms before the judges fully consider the case.
But Tipton’s orders are likely to be the first of many conservative federal judges who rely on questionable legal reasoning to undermine Biden’s policies.
Promoter discretion, briefly explained
The biggest mistake at Tipton’s Texas orders is that they ignore a doctrine known as “prosecutor’s discretion”, which usually allows law enforcement officials – and policymakers who oversee law enforcement – to decide not to apply a particular law against a particular individual .
If you’ve ever been stopped for speeding and were released with a warning, the police officer who pulled you in exercised that kind of discretion. Likewise, several district prosecutors and other prominent prosecutors have announced that their offices will no longer prosecute minor marijuana offenders – and instead will spend their office’s limited resources prosecuting other crimes. Usually, courts do not intervene when a policy maker announces such a decision not to bring certain types of coercive action.
In fact, the Supreme Court has instructed judges to be extremely reluctant in prosecutorial discretion guessing exercises by federal officials – whether those decisions are made by a federal prosecutor or by one of the senior officials in the executive branch.
As the Supreme Court found Heckler v. Chaney (1985), “an agency’s decision not to take coercive measures should be presumed immune from judicial review.” Furthermore, this presumption is especially strong in the context of immigration. The Court explained in Arizona x United States (2012) that “a main feature of the removal system is the ample discretion exercised by immigration officials”. Therefore, the presumption against judicial review of the Executive Branch’s decision not to deport someone is particularly strong.
The executive branch, led by Biden, can also abandon its attempt to deport an immigrant at any time. As Judge Antonin Scalia explained in Reno v. Arab American Anti-Discrimination Committee (1999), at each stage of the deportation process “the Executive has the power to abandon the enterprise”. And it can do so for a number of reasons, including “humanitarian reasons or simply for your own convenience”.
Nor should the courts intervene just because the executive decides not to enforce a particular law against a large group of individuals, instead of sharing mercy one person at a time.
This problem arose in United States x Texas, another case in which the state of Texas sued the federal government to block a Democratic president’s immigration policies. This other Texas case came to the Supreme Court in 2016, although the court divided 4 to 4 over whether to maintain an Obama administration policy that would have allowed millions of undocumented immigrants to live and work in the United States, while allowing them to participate in programs like Medicare and Social Security.
Notably, in 2016 Texas In this case, the state of Texas has recognized that the executive branch has broad authority not to deport a large group of legally qualified immigrants for removal. The state report in the 2016 case emphasized that a first instance order blocking the Obama administration’s policy “does not affect the executive’s discretion” and “does not require the executive to remove anyone.” Texas even admitted that “the Executive has always been free to issue ‘low priority’ identity cards to foreigners,” thereby identifying the specific undocumented immigrants it chooses not to deport.
Judge Tipton, in other words, should have rejected the most recent Texas right after landing on your desk. The Biden government’s decision to temporarily stop deportations while deciding its long-term immigration policy priorities cannot be reviewed by a federal court.
What Tipton did instead
Instead of following Supreme Court decisions as Heckler and Arizona, Tipton instead fixed himself on a single word in an immigration statute – the word “must” – and claimed that this single word justifies his order.
As noted above, Heckler he maintained that decisions not to execute the executive branch are “presumably immune to judicial review”, but that presumption can be overcome in unusual cases. Among other things, the presumption can be overcome when “the substantive law provided guidelines for the agency to follow in the exercise of its enforcement powers”. If Congress decides to “limit the exercise of an agency’s supervisory power,” those limits can usually be imposed by a federal court.
Tipton is based on a provision of federal immigration law that states that “except as otherwise provided in this section, when an alien is ordered to be removed, the Attorney General must remove the alien from the United States within a period of 90 days” to justify his conclusion that Congress placed limits on the Biden government’s discretion. The crux of Tipton’s view is that, at least in this context, the word “must” is a mandatory command. And therefore, the government has no choice but to remove certain immigrants who have already been expelled from the country.
There are several problems with this analysis. One is that the same statute on which Tipton is based also provides that “if the alien does not leave or is not removed within the removal period, the alien, pending removal, will be subject to supervision in accordance with the regulations prescribed by the Prosecutor- General.” Therefore, Congress clearly expected that there would be cases where an immigrant subject to a removal order would not be removed after 90 days.
Another problem with Tipton’s order is that there is a whole body of law that allows Executive officials to grant “deferred action” to an undocumented immigrant – essentially an executive decision that an immigrant will not be deported for at least some time. – and the executive’s power to grant deferred action has been endorsed by both Congress and the Supreme Court.
In fact, when Scalia wrote about the executive’s broad power to abandon a particular deportation process in Rhine, he explicitly referred to the deferred action.
A third problem with Tipton’s order, one that he at least acknowledges in his opinion, is that the Supreme Court has long warned judges against reading federal laws to impose mandatory obligations on the government, even when those laws use language rigid as the world “should.” As the Supreme Court held Railroad Company v. Hecht (1877), “as against the government, the word ‘must’, when used in statutes, must be interpreted as ‘can’, unless a contrary intention is manifest.”
Tipton, in other words, put too much emphasis on a single word he read out of context, and did so without paying due respect to a long line of Supreme Court cases advising him not to read that word rigidly.
Tipton’s order could put the two most conservative Supreme Court judges in a difficult spot.
Just over a year ago, the Federal Supreme Court issued an injunction on Department of Homeland Security v. New York, which reinstated a Trump administration policy that sought to keep many low-income immigrants out of the country.
Although the entire Court did not explain why it reinstated this policy (the vote was 5-4, according to party lines), Judge Neil Gorsuch wrote a brief opinion criticizing a practice known as “national injunctions”, and his opinion was accompanied by her conservative colleague Justice Clarence Thomas.
It is an extraordinarily persuasive opinion! Essentially, Gorsuch warned that a single federal judge should not have the power to block federal policy at the national level. “It is difficult to see how the court could still be acting in the judicial role of resolving” individual cases, “wrote Gorsuch, when issuing such a national order.
As Gorsuch noted, “there are currently more than 1,000 active and senior district judges, seated in 94 judicial districts and subject to review in 12 regional appellate courts.” If a single judge can suspend federal policy across the country, plaintiffs are likely to “seek a friendly forum to ensure a victory across the country” – that is, they are likely to seek a sympathetic judge who is willing to issue an order that the most judges would scoff.
And opponents of a particular policy can potentially get multiple bites of the apple. As Gorsuch writes, in a world with injunctions across the country, “the government’s hope of implementing any new policy could face the long chances of a direct sweep, accumulating a 94 to 0 victory in the district courts in a 12 to 12 victory. 0 in the appellate courts. ”The injunctions across the country could mean that if the government suffers” a single loss “, then” the policy goes to ice “.
Tipton’s order interrupting the 100-day break in deportations applies “across the country”, so it is the same type of unlimited injunction that Gorsuch warned against in his New York opinion. The question for judges like Gorsuch, in other words, is whether they will have the courage of their convictions now that a Democratic president would benefit from a decision that limits the scope of court orders that block federal policies.