A federal judge’s action Tuesday preventing President Joe Biden’s 100-day pause in deportations demonstrated the land mines that await the new administration in the nation’s courts.
The short-term order by the Texas-based judge could also force a confrontation up to the US Supreme Court, where the Biden legal team already faces hard choices over how aggressively to press new legal positions before the nine justices — six of whom are conservatives, with three appointed by former President Donald Trump.
US District Judge Drew Tipton, also a Trump appointee, sided on Tuesday with Texas Attorney General Ken Paxton, a Trump loyalist who has challenged Biden’s temporary suspension of deportations.
The nationwide scope of Tipton’s order further intensifies debate over broad-scale actions against the executive branch imposed by a lone judge, which were the bane of the Trump administration.
“These nationwide injunctions have frustrated presidential policy for most of the President’s term with no clear end in sight,” then-Attorney General William Barr declared in a 2019 speech.
Trump Justice Department lawyers routinely were able to convince the Supreme Court to lift those injunctions, although that sometimes took months. The conservative Supreme Court majority may not be as sympathetic to Biden’s ventures as it was to Trump’s.
All told, Tuesday’s court action against an administration barely a week old reveals how tough it might be to advance a new agenda on immigration or any domestic policy if hit with lawsuits before judges who became increasingly right-wing during the Trump tenure.
As Biden promotes new programs and encounters legal objections, there is no escaping that they will be resolved by life-tenured judges, 30% of whom were named by Trump.
Dispute over pause in deportations
The pause on deportations, announced immediately after Biden’s inauguration, reflects the desire to dismantle Trump’s anti-immigrant practices. Biden also halted construction on the wall at the southern border.
Department of Homeland Security officials said the 100-day hold on deportations would allow the administration to review current practices and to ensure “a fair and effective immigration enforcement system focused on protecting national security, border security, and public safety.”
The moratorium, which began last Friday — the day that Paxton sued — excludes some categories of individuals, including those who came to the US after November 1, are suspected of terrorism or espionage or pose a danger to national security, and have waived rights to remain in the US.
Paxton, who led a failed lawsuit at the Supreme Court contesting Biden’s election victory over Trump, contended that the 100-day suspension violated federal procedural requirements and breached a pact the Trump administration had made with Texas just before Trump left office. It dictated that the Department of Homeland Security would consult with the state before changing certain immigration practices.
It is not clear whether such recent agreements made with various states could be legally enforced. Tipton said he would need more time and additional legal briefing to review the question as he set the 14-day temporary restraining order.
But crucially, Tipton agreed with Texas that it appeared the suspension violated the Administrative Procedure Act’s safeguards against “arbitrary and capricious” executive action.
The January 20 memorandum “not only fails to consider potential policies more limited in scope and time, but it also fails to provide any concrete, reasonable justification for a 100-day pause on deportations,” Tipton wrote.
Tipton said Texas had shown it could be hurt by the policy because of the millions of dollars it puts toward social services and other state benefits for undocumented immigrants.
Regarding his imposition of a nationwide order, he wrote that the “100-day pause plainly affects national immigration policy, which demands uniformity.”
Federal judges often shudder at the suggestion that they would ideologically align with the presidents who appointed them, and Chief Justice John Roberts famously answered Trump’s disparagement of an “Obama judge” with this admonition: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
Regardless of Roberts’ declaration, the fact remains that Biden may find a skeptical judiciary.
Trump filled 177 of the 682 district court judgeships and 54 of the 179 appeals court judgeships, according to data compiled by the Brookings Institution’s Russell Wheeler — in addition to the three new Supreme Court justices.