Infuriating, but possibly less than it appears.
A federal judge in Texas temporarily blocked the Biden administration from moving forward with a 100-day pause on many deportations across the US, saying Tuesday that it was not adequately reasoned or explained to the public.
The temporary restraining order represents an initial setback for the Biden administration, which has vowed to reform agencies like Immigration and Customs Enforcement (ICE) by restricting who is arrested and deported.
“This is a frustrating loss for an administration that was trying to set a different tone than the chaos and rapid changes of the prior four years,” said Sarah Pierce, an analyst at the Migration Policy Institute. “The order makes it clear that the moratorium may face significant legal hurdles.”
Judge Drew Tipton, who was appointed by former president Donald Trump, ordered the Biden administration to immediately stop enforcing its moratorium on many deportations, which had gone into effect on Friday before Texas sued. The temporary restraining order is in effect for 14 days as the case proceeds.
On Jan. 20, the Biden administration issued a pause on deportations for many undocumented immigrants who have final orders of removal. The memo states that the 100-day pause applies to all noncitizens with final deportation orders except those who have engaged in a suspected act of terrorism, people not in the US before Nov. 1, 2020, or those who have voluntarily agreed to waive any right to remain in the US.
But Tipton said the memo issued by David Pekoske, acting secretary of the Department of Homeland Security, appeared likely to violate the Administrative Procedures Act and that it was not adequately reasoned or explained.
“Here, 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,” he wrote, while adding that Texas had shown evidence it would suffer if Biden’s moratorium was not blocked.
Tipton said Texas had demonstrated “that it pays millions of dollars annually to provide social services and uncompensated healthcare expenses and other state-provided benefits to illegal aliens such as the Emergency Medicaid program, the Family Violence Program, and the Texas Children’s Health Insurance Program.”
The state claimed that those costs would rise if the moratorium continued.
But Pratheepan Gulasekaram, an immigration law professor at Santa Clara University Law School, said the decision appeared to be vulnerable to an appeal.
“Federal administrations can and should be able to set their own enforcement policy as long as it is not forbidden by federal law. This allows a state to stop the federal government from reassigning resources and personnel and deciding the optimal level of enforcement,” he said. “This is not the way our federalism in the constitution is structured. States don’t have veto ability.”
There are several remarkable aspects of Tipton’s decision. First, it applies nationwide—even though conservative jurists and Republican politicians spent the last four years decrying nationwide injunctions as illicit and unlawful. Trump’s Department of Justice launched a campaign against these injunctions, complaining that they unconstitutionally interfered with executive power. Right-wing judges condemned them as lawless power-grabs that promote “gamesmanship and chaos.” Republican lawmakers proposed legislation bringing them to a heel. Intellectuals in the conservative legal movement accused “resistance judges” of using them to sabotage the president. Now, six days into Biden’s term, a conservative judge has issued a nationwide injunction at the behest of a Republican politician.
Second, it is extremely difficult to determine the harm that Biden’s memo inflicted on Texas—and, by extension, why the state has standing to bring this case at all. In his lawsuit, Paxton failed to identify any concrete harm to Texas that actually flows from the deportation pause. Instead, he rehashed general complaints about the state’s expenditures on immigrants eligible for deportation—using estimations from 2018—and asked the court to assume that Biden’s memo would raise these costs. Paxton offered zero evidence that this specific memo would raise costs to Texas. Tipton gave the state standing anyway.
Third, and most importantly, Tipton’s decision is utterly divorced from both the entire framework of federal law governing deportation and the removal system as it functions on the ground. The thrust of Tipton’s reasoning is that a federal statute says the government “shall remove” an immigrant who has been “ordered removed” within 90 days. But, as the Supreme Court recognized as recently as last June, federal law also gives DHS sweeping discretion to determine which immigrants to deport, and when. A slew of statutes and regulations recognize this authority and address immigrants who are not removed within 90 days, a clear signal that this deadline is not, in fact, an iron rule.
Moreover, the deportation process is complex and time-consuming: It involves not only legal appeals but also tedious pragmatic considerations, like how an immigrant will actually be transported out of the country. The government has to plan this transportation on a mass scale, and it does not have a travel agency at its disposal that can guarantee an international flight full of deported immigrants within 90 days or your money back.
In short, if immigration law meant what Tipton says it does, then every president has violated it every day of their term, including the one who appointed him. Luckily, it does not. And there is therefore a very good reason to doubt that Tipton’s order will cause many, if any, deportations. The judge blocked Biden’s general policy of non-enforcement—but he did not, and could not, force the government to actually ensure that every immigrant who is eligible for removal be deported within 90 days. Biden’s DHS can merely exercise its authority to pause deportations on an immigrant-by-immigrant basis by granting an administrative stay of removal. It can halt travel arrangements and cancel deportation flights. Biden’s memo might be on hold, but it is perfectly lawful for the government to freeze deportations under its existing discretionary powers.
Others noted that the order is pretty limited in scope:
And as @DLind points out, that also leaves in place the portions of the memorandum that revoked a number of bad Trump-era policies.
— Aaron Reichlin-Melnick (@ReichlinMelnick) 2:00 PM – 26 January 2021
Everyone’s favorite question of standing was also brought up. It was not clear as I was drafting this if the Biden administration was going to ask the judge to put his order on hold, or if they were just going to appeal directly; either way, things may change before this runs in the morning, or shortly thereafter. It’s important to remember that the point of this lawsuit first and foremost is Ken Paxton’s fundraising, which works to his advantage whether he wins or loses. Given that, he may as well lose, that’s all I’m saying. Daily Kos, the Chron, and the Trib have more.