Originally Published in Vox
Ian Millhiser - February 25, 2021
Biden is likely to spend his presidency fighting Republican judges who block his policies for legally dubious reasons.
Less than a week after President Joe Biden took office, a Trump-appointed judge handed down a temporary order that is likely to be the first of many court orders by Republican judges attempting to block Biden’s policies. That same judge extended that temporary order on Tuesday, effectively blockading the Biden administration’s attempt to pause deportations for a few months.
On January 20, the first day of the Biden administration, then-acting Secretary of Homeland Security David Pekoske released a memorandum temporarily pausing most deportations for 100 days while the new administration conducts a “Department-wide review of policies and practices concerning immigration enforcement.”
On January 26, a Trump appointee to a federal court in Texas handed down a temporary order blocking this pause on deportations. Then, Tuesday evening, Judge Drew Tipton handed down an opinion that effectively extends his original order for the life of the 100-day pause on deportations. The new opinion in Texas v. United States is 105 pages, and it purports to offer 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 judicial branch has no power to hear in the first place. And it does so in contravention of numerous Supreme Court decisions — one of which states that “the Executive has discretion to abandon the endeavor” at “each stage” of the deportation process.
A crucial part of Tipton’s opinion reduces a complicated web of immigration statutes, judicial decisions, regulations, and longstanding agency practices into a hyper-literal interpretation of a single word — a word that the Supreme Court explicitly cautioned Tipton against reading in the way that he reads it.
Yet while Tipton’s actions in Texas are difficult to defend as a matter of law, it is fairly likely that his order will stand. Tipton’s latest order will appeal to the United States Court of Appeals for the Fifth Circuit, one of the most conservative courts in the country, where Republican appointees outnumber Democrats 12-5 among the court’s active judges — and then possibly to a Supreme Court where Republicans hold a 6-3 majority.
Because this case involves a policy that was set to expire after 100 days, moreover, it’s possible that Pekoske’s memorandum will expire on its own terms before the justices fully consider the case.
But Tipton’s orders are likely to be the first of many from conservative federal judges that rely on questionable legal reasoning to undermine Biden’s policies.
Prosecutorial discretion, briefly explained
The biggest error in Tipton’s Texas orders is that they give short shrift to a doctrine known as “prosecutorial discretion,” which typically allows law enforcement — and policymakers who oversee law enforcement — to decide not to enforce a particular law against a particular individual.
If you’ve ever been pulled over for speeding and let off with a warning, then the cop who pulled you over exercised this kind of discretion. Similarly, several district attorneys and other top prosecutors announced that their offices will no longer prosecute minor marijuana offenders — and will instead spend their offices’ limited resources prosecuting other crimes. Typically, courts do not intervene when a policymaker announces such a decision not to bring certain kinds of enforcement actions.
Indeed, the Supreme Court has instructed judges to be extremely reluctant to second-guess exercises of prosecutorial discretion by federal officials — whether those decisions are made by a federal prosecutor or by one of the most senior officials in the executive branch.
As the Supreme Court held in Heckler v. Chaney (1985), “an agency’s decision not to take enforcement action should be presumed immune from judicial review.” This presumption, moreover, is especially strong in the immigration context. The Court explained in Arizona v. United States (2012) that “a principal feature of the removal system is the broad discretion exercised by immigration officials.” So the presumption against judicial review of the executive branch’s decision not to deport someone is particularly strong.
The executive branch, which is led by Biden, may also abandon its attempt to deport an immigrant at any time. As Justice Antonin Scalia explained in Reno v. American-Arab Anti-Discrimination Committee (1999), at each stage of the deportation process “the Executive has discretion to abandon the endeavor.” And it may do so for any number of reasons, including “humanitarian reasons or simply for its own convenience.”
Nor should courts intervene just because the executive decides not to enforce a particular law against a large group of individuals, rather than parceling out mercy a person at a time.
This issue arose in United States v. Texas, another case where the state of Texas sued the federal government to block a Democratic president’s immigration policies. This other Texascase reached the Supreme Court in 2016, although the Court split 4-4 on whether to uphold an Obama administration policy that would have allowed millions of undocumented immigrants to live and work in the United States, while also allowing them to participate in programs like Medicare and Social Security.
Notably, in this 2016 Texas case, the state of Texas conceded that the executive branch has broad authority not to deport a large group of immigrants who are lawfully eligible for removal. The state’s brief in the 2016 case emphasized that a lower court order blocking the Obama administration’s policy “does not affect the Executive’s enforcement discretion” and it “does not require the Executive to remove anyone.” Texas even conceded that “the Executive has been free all along to issue ‘low-priority’ identification cards to aliens,” thus identifying the specific undocumented immigrants that it chooses not to deport.
Judge Tipton, in other words, should have dismissed the more recent Texas case shortly after it landed on his desk. The Biden administration’s decision to temporarily pause deportations while it decides its long-term immigration policy priorities cannot be reviewed by a federal court.
What Tipton did instead
Rather than follow Supreme Court decisions like Heckler and Arizona, Tipton instead fixated on a single word in an immigration statute — the word “shall” — and claimed that this one word justifies his order.
As noted above, Heckler held that the executive branch’s non-enforcement decisions are “presumed immune from judicial review,” but that presumption can be overcome in unusual cases. Among other things, the presumption may be overcome when “the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers.” If Congress decides to “limit an agency’s exercise of enforcement power,” then those limits typically may be enforced by a federal court.
Tipton relies on a provision of federal immigration law which provides that “except as otherwise provided in this section, when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days” to justify his conclusion that Congress did place limits on the Biden administration’s discretion. The crux of Tipton’s opinion is that, at least in this context, the word “shall” is a mandatory command. And thus the administration has no choice but to remove certain immigrants who have already been ordered removed from the country.
There are a number of problems with this analysis. One is that the same statute that Tipton relies on also provides that “if the alien does not leave or is not removed within the removal period, the alien, pending removal, shall be subject to supervision under regulations prescribed by the Attorney General.” So Congress clearly expected there to 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 an entire body of law permitting executive branch officials to grant “deferred action” to an undocumented immigrant — essentially a decision by the executive that an immigrant will not be deported for at least some time — and the executive’s power to grant deferred action has been endorsed both by Congress and by the Supreme Court.
Indeed, when Scalia wrote about the executive’s broad power to abandon a particular deportation proceeding in Reno, he referred explicitly to deferred action.
A third problem with Tipton’s order, a problem 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 rigid language like the world “shall.” As the Supreme Court held in Railroad Company v. Hecht (1877), “as against the government, the word ‘shall,’ when used in statutes, is to be construed as ‘may,’ unless a contrary intention is manifest.”
Tipton, in other words, placed far too much emphasis on a single word that he read out of context, and he 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 place the Supreme Court’s two most conservative justices in a bind.
A little more than a year ago, the Supreme Court handed down a temporary order in 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.
Though the full Court did not explain why it reinstated that policy (the vote was 5-4, along party lines), Justice Neil Gorsuch penned a brief opinion criticizing a practice known as “nationwide injunctions,” and his opinion was joined by his fellow conservative Justice Clarence Thomas.
It’s an extraordinarily persuasive opinion! Essentially, Gorsuch warned that a single federal trial judge should not have the power to block a federal policy on a nationwide basis. “It is hard to see how the court could still be acting in the judicial role of resolving” individual cases,” Gorsuch wrote, when it issues such a nationwide order.
As Gorsuch noted, “there are currently more than 1,000 active and senior district court judges, sitting across 94 judicial districts, and subject to review in 12 regional courts of appeal.” If a single judge can suspend a federal policy through the entire country, then plaintiffs are likely to “shop for a friendly forum to secure a win nationwide” — that is, they are likely to hunt for a sympathetic judge who is willing to issue an order that most judges would scoff at.
And opponents of a particular policy can potentially get multiple bites at the apple. As Gorsuch writes, in a world with nationwide injunctions, “the government’s hope of implementing any new policy could face the long odds of a straight sweep, parlaying a 94-to-0 win in the district courts into a 12-to-0 victory in the courts of appeal.” Nationwide injunctions can mean that if the government endures “a single loss,” then “the policy goes on ice.”
Tipton’s order halting the 100-day pause on deportations applies “on a nationwide basis,” so it is the very kind of unbounded injunction that Gorsuch warned against in his New Yorkopinion. 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 limiting the scope of court orders blocking federal policies.