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.
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.
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.”
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.