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