Originally Published in Slate
Mark Joseph Stern - January 26, 2021
On Tuesday afternoon, U.S. District Judge Drew Tipton, a Donald Trump appointee, issued a bizarre decision purporting to block Joe Biden’s 100-day halt on deportations. Tipton’s order, which applies nationwide, claims to freeze Biden’s effort to pause the Department of Homeland Security’s deportation machine while the new president revises its priorities. In reality, however, it is unclear whether the order will do anything. Tipton does not appear to have a rudimentary understanding of either immigration law or the practical realities of the immigration system. His ignorance may well render Tuesday’s order effectively toothless.
Upon assuming the presidency, Biden issued a memo that began the process of readjusting the federal government’s immigration policies. The government cannot, realistically, deport every immigrant eligible for removal, so every new president prioritizes certain categories of deportations and deprioritizes others. Biden ordered a 100-day pause on most deportations while his Department of Homeland Security established new rules, with exceptions for immigrants suspected of terrorism or convicted of an aggravated offense. Texas Attorney General Ken Paxton, who recently led an unsuccessful effort to overturn the 2020 election, promptly asked the federal judiciary to issue a nationwide block on Biden’s memo.
Paxton filed his case in the Southern District of Texas to ensure that he would draw a conservative judge. Sure enough, his case landed before Tipton, a member of the Federalist Society. The judge swiftly blocked Biden’s deportation freeze across the entire country, finding that it likely exceeded DHS’ authority.
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 acampaign 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 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 nonenforcement—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.
Even so, Tipton’s order does not bode well for the Biden administration. Trump installed 234 judges in the federal judiciary, and many of them will not hesitate to issue similarly ridiculous decisions purporting to exercise authority that belongs to the president. Paxton, a speaker at the Jan. 6 rally that preceded the Capitol riot who is under federal investigation on separate corruption allegations, cheered Tuesday’s decision as a victory against “a seditious left-wing insurrection.” There should be no doubt that many of Trump’s judges will view every act by the Biden administration just as Paxton does—as an illegitimate attack on the Constitution that must be thwarted by any means necessary.