Less than a week after President Joe Biden took office, a Trump-appointed judge has issued a temporary injunction that is likely the first of many court orders by Republican judges to try to stop Biden’s policies. The same judge extended that temporary order Tuesday and effectively blocked the Biden government’s attempt to suspend deportations for several months.
On January 20, the first day of the Biden administration, the then acting Secretary of Homeland Security, David Pekoske, released a memorandum that temporarily suspended most deportations for 100 days, while the new administration provided a “departmental review of conduct immigration enforcement policies and practices. ”
On January 26, a Trump appointment at a federal court in Texas issued a temporary order blocking this break on deportations. Then, Tuesday night, Judge Drew Tipton handed down an opinion that effectively extended his original order for the duration of the 100-day interruption of deportations. The new opinion in Texas v United States is 105 pages, and it pretends to provide a legitimate justification for Tipton’s actions.
But Tipton’s Texas opinion is a failure of legal reason. It claims power over a case that the judicial branch does not have power in the first place. And it does so contrary to numerous Supreme Court rulings, one of which states that ‘the executive has the discretion to abandon the attempt’ at ‘every stage’ of the deportation process.
An important part of Tipton’s opinion reduces a complex web of immigration laws, judicial decisions, regulations and lengthy agency practices to a hyper-literal interpretation of a single word – a word that the Supreme Court explicitly warned Tipton to read that way on which he reads it.
Yet while Tipton’s actions in Texas difficult to defend as a matter, it is likely that his order will apply. Tipton’s latest order will appeal to the U.S. Court of Appeals for the Fifth Circuit, one of the most conservative courts in the country, where Republican appointees have Democrats more than 12-5 among the active judges of the court – and then possibly A Supreme Court where Republicans hold a 6-3 majority.
Because this case involves a policy that would expire after 100 days, it is also possible that Pekoske’s memorandum will expire on its own terms before the judges fully consider the case.
Tipton’s orders are probably the first of many conservative federal judges to rely on dubious legal reasons to undermine Biden’s policies.
Prosecution discretion, briefly explained
The biggest mistake in Tipton’s Texas orders are that it gives a brief description of a doctrine known as ‘prosecution discretion’, which typically causes law enforcement – and law enforcement overseers – to decide not to pass a particular law against a particular individual to force.
If you have ever been chased too fast and given up with a warning, the police who pulled you over exercised this kind of discretion. Several district attorneys and other top prosecutors have also announced that their offices will no longer prosecute underage marijuana offenders – and that they will spend the limited resources of their offices to prosecute other crimes. Usually, courts do not intervene when a policy maker announces such a decision not to institute certain types of enforcement action.
Indeed, the Supreme Court has instructed judges to be extremely reluctant about exercises of federal officials, whether decided by a federal prosecutor or by one of the most senior officials in the executive branch.
As the Supreme Court in Heckler teen Chaney (1985), an agency’s decision not to take enforcement action should be considered immune to judicial review. ‘This suspicion is also particularly strong in the immigration context. The Court ruled in Arizona v. United States (2012) that “a key feature of the removal system is the wide discretion exercised by immigration officials.” The suspicion against judicial review of the executive’s decision not to deport anyone is therefore particularly strong.
The executive, led by Biden, could also abandon its attempt to deport an immigrant at any time. As Judge Antonin Scalia explained in Reno v. American-Arab Committee Against Discrimination (1999), ‘at the stage of the deportation process’, the executive has the discretion to abandon the attempt. ‘And it can be done for various reasons, including’ humanitarian reasons or simply for your own convenience ‘.
Courts should also not intervene simply because the executive decides not to enforce a particular law against a large group of individuals, rather than handing out mercy to a person.
This issue arose in United States vs. Texas, another case where the state of Texas has sued the federal government for blocking the immigration policy of a Democratic president. This other Texas the case reached the Supreme Court in 2016, although the court split 4-4 on upholding an Obama administration policy that would allow millions of immigrants to live and work in the United States without documents, while also being allowed to participate to programs like Medicare and Social Security.
It is especially in this 2016 Texas In the case, the state of Texas conceded that the executive has broad authority not to deport a large group of immigrants who are legally eligible for removal. The state’s mandate in the 2016 case emphasizes that a lower court order blocking the Obama administration’s policy “does not affect the executive branch of the executive branch” and that it “does not require the executive branch to remove anyone not.” Texas even conceded that ‘the executive was all the time free to identify’ foreign foreigners’ with ‘low priority’, thus identifying the specific undocumented immigrants they choose not to deport.
Judge Tipton, in other words, had to dismiss the more recent Texas case shortly after it landed on his desk. The decision of the Biden government to temporarily suspend deportations while deciding the priorities of long-term immigration policy cannot be judged by a federal court.
What Tipton did before
Rather than the rulings of the Supreme Court as Heckler and ArizonaTipton instead established a single word in an immigration law – the word “will” – and claims that this one word justifies his order.
As noted above, Heckler is of the opinion that the executive’s non-enforcement decisions are “presumably immune to judicial review”, but that the suspicion can be overcome in unusual cases. The suspicion can be overcome, among other things, if “the essential legislation provides guidelines that the agency must follow in order to exercise its enforcement powers.” If Congress decides to ‘restrict the establishment of an agency’, the federal court can usually enforce these restrictions.
Tipton relies on a provision of the Federal Immigration Act which provides that “except as otherwise provided in this section, when an alien is ordered to be removed, the Attorney General shall remove the alien from the United States within a period of 90 days. will remove “to justify its conclusion. that Congress did restrict the discretion of the Biden administration. The crux of Tipton’s view is that, at least in this context, the word ‘will’ is a mandatory command. And so the administration has no choice but to remove certain immigrants who have already been ordered out of the country.
There are a number of issues with this analysis. One is that the same law on which Tipton relies also provides that “if the alien does not leave or is not removed within the removal period, the alien, pending removal, will be under supervision under prescriptions prescribed by the Attorney General.” Congress therefore 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 legislation that allows executive branch officials to grant a deferred action to an undocumented immigrant – essentially a decision of the executive that ‘ an immigrant will not be deported for at least some time – and the power of the executive to grant deferred action has been approved by Congress and the Supreme Court.
Indeed, when Scalia wrote about the broad power of the executive to initiate a specific deportation process Reno, he explicitly referred to deferred action.
A third problem with Tipton’s order, a problem he at least acknowledges in his opinion, is that the Supreme Court has long warned judges to read federal laws to impose mandatory obligations on the government, even when these laws’ a rigid language as the world uses’ will. ”As the Supreme Court in Railroad Company v. Pike (1877), “towards the government, the word ‘must’, when used in the laws, should be regarded as’ power ‘, unless a conflicting intention is disclosed.’
Tipton, in other words, placed too much emphasis on a single word he read out of context, and he did so without paying proper attention to a long series of Supreme Court cases that advised him not to take the word too seriously. do not read.
Tipton’s order could put the two most conservative judges of the Supreme Court in a decisive position.
Just over a year ago, the Supreme Court issued a temporary order in Department of Homeland Security v New York, which reintroduced a Trump administration policy that sought to keep many low-income immigrants out of the country.
Although the full court did not explain why it reinstated the policy (the vote was 5-4 by party line), Judge Neil Gorsuch wrote a brief opinion criticizing a practice known as ‘nationwide orders’, and she opinion was added by his co. Conservative Judge Clarence Thomas.
This is an extraordinarily convincing opinion! In essence, Gorsuch warned that a single federal trial judge should not have the power to block a federal policy on a nationwide basis. “It is difficult to see how the court can still act in the judicial role of resolving ‘individual cases,'” Gorsuch wrote when issuing such a nationwide order.
As Gorsuch noted, “there are currently more than 1,000 active and senior district court judges, who sit in 94 judicial districts and can be reviewed in twelve local appellate courts.” If a single judge can suspend a federal policy across the country, plaintiffs are likely to ‘shop for a friendly forum to achieve a nationwide victory’ – that is, they are likely to hunt down a sympathetic judge who willing to make an order that most judges will mock.
And opponents of a particular policy could potentially get multiple bites to the apple. As Gorsuch writes, in a world with nationwide mandates, ‘the government’s hope for the implementation of a new policy could face the long chance of a straight whip, and a 94-to-0 victory in the district courts in a 12-to-0 victory transformed into the courts of appeal. “Nationwide orders could mean that if the government endures a single loss, ‘the policy will go on ice’.
Tipton’s order to suspend the 100-day deportation over the deportation applies ‘nationwide’, so this is the kind of unrestricted order against which Gorsuch 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 ruling that limits the scope of court orders that block federal policy.