On Jan. 26, a federal judge in Texas issued a temporary restraining order barring the Biden administration from executing a 100-day pause on the removal of undocumented immigrants. As a matter of logic, this seems odd. Think about it: The court held that President BidenJoe BidenJill Biden campaigns for McAuliffe in Virginia Fill the Eastern District of Virginia Biden: Those who defy Jan. 6 subpoenas should be prosecuted MORE must continue to deport people immediately because the state of Texas would be irreparably harmed if he held off 100 days in order to get his bearings as the new president.
Harmed how? The court reasoned that Texas “pays millions of dollars annually to provide ... state-provided benefits to illegal aliens.” Plus, Texas has “increased educational costs” if these folks remain in the country for 100 extra days, and Biden’s temporary freeze on deportations would “encourage additional illegal immigration into Texas, thereby exacerbating its public service costs.” As for harms to the would-be deportees and their families, the court was persuaded “that the public interest is served by the execution of removal orders.”
Keep in mind that new or revised government policies routinely increase costs to one party or another. Compliance with a rule requiring new safety standards in a widget factory will cost the widget factory owners money. In some cases, parties are able to halt implementation of a government policy pending litigation through a preliminary injunction — but such relief is rare. If fiscal harm were enough to secure temporary restraining orders in the majority of cases challenging government action, judges would likely be running the executive branch. Thus, as the court noted in its order, injunctive relief is “an extraordinary remedy” that is the exception, not the rule. And notably, the court acknowledged that “fiscal harm” was a slender basis for bringing the case in the first place.
The lawsuit was filed by Texas Attorney General Ken Paxton, who just a few weeks prior infamously asked the Supreme Court to cancel millions of votes cast in four other states — Georgia, Wisconsin, Michigan and Pennsylvania — in a bid to deprive the people of their choice for president in 2020, Joe Biden, based on ballot imperfections. There was no valid legal basis for the extraordinary relief sought in that lawsuit, which the Supreme Court summarily rejected.
This round, Paxton relied on a procedural statute known as the Administrative Procedure Act (“APA”), which requires executive branch agencies to jump through certain hoops when they make rules — known generally as regulations — that have the force of law. The post-New Deal statute dates from 1946, and is aimed at cabining agencies’ power, particularly when they take steps to pass laws that function like acts of Congress. It also has standards against which judges may review various types of agency actions. The standard applied in this case — arbitrary and capricious review — is generally considered quite deferential to the agency.
The court was nonetheless persuaded here that Paxton is likely to win his case under the APA, thereby justifying the temporary restraining order, because it likely violates a federal statute stating in part that “when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days.” The court seized on the word “shall,” and further deemed the Biden plan to stall deportations “arbitrary and capricious” because it “fails to consider potential policies more limited in scope and time” or “provide any concrete, reasonable justification for a 100-day pause on deportations.”
What is puzzling about this temporary restraining order is the Supreme Court’s controversial 5-4 decision in Trump v. Hawaii, in which it upheld in 2018 the last version of President TrumpDonald TrumpTrump criticizes Justice for restoring McCabe's benefits Biden: Those who defy Jan. 6 subpoenas should be prosecuted Hillicon Valley — Presented by LookingGlass — Hackers are making big money MORE’s now-defunct travel ban from countries with high proportions of Muslim populations. Trump had concluded that it was necessary to impose entry restrictions on certain countries. Foreign nationals sued, arguing that Trump lacked the authority to impose the ban by executive order, and that it violated the Establishment Clause of the First Amendment. The Supreme Court majority roundly ruled in Trump’s favor.
The Biden moratorium on deportations was done through a memorandum issued by the Department of Homeland Security (DHS), not by executive order. But the Supreme Court’s rejection of the arguments against the travel ban was sweeping, in deference to the president’s “power of exclusion of aliens” — a power that’s not expressed in the Constitution, but "inherent" under his Article II powers.
To be sure, Trump v. Hawaii involved a different statute governing the inadmissibility of classes of non-citizens than does Paxton’s suit and the Supreme Court was persuaded that Congress had granted virtually unlimited discretion to the president. Arguably, the statute involved in the Paxton lawsuit is less deferential. But in both instances, the incumbent administration was suspending a policy — for Trump, it was admission into the U.S. For Biden, it’s deportation. Among other things, the government argued in its opposition papers that Biden’s policy is a classic exercise of prosecutorial discretion — or a decision not to exercise it for 100 days — and thus within the province of the president’s Article II powers.
The judge in the Paxton case, Drew B. Tipton, was appointed to the federal bench by Trump in 2020 and confirmed by a vote of 52-41 in the Senate. Overall, the political neutrality of the judiciary, which properly refused to entertain an avalanche of lawsuits seeking to overturn the 2020 presidential election results, should be a point of American pride. But it’s impossible not to wonder whether, given the wobbly legal basis for the extraordinary relief Judge Tipton afforded the attorney general of his home state of Texas, a neutral assessment of the facts and the law carried the day here.
Kimberly Wehle is a professor at University of Baltimore School of Law and author of the books "How to Read the Constitution — and Why,” and “What You Need to Know About Voting — and Why.” Follow her on Twitter @kimwehle.