The 5th Circuit Delivers a Shockingly Ruthless Rebuke of Joe Biden's Lawlessness

AP Photo/Alex Brandon

You may recall some weeks ago when RedState reported on the Biden administration moving to reinstate Donald Trump’s “Remain in Mexico” policy.


Upon taking office, Joe Biden pulled out his pen and phone and nixed the measure that had stemmed the tide of unqualified asylum applicants and trafficking of children. Soon after, with the Obama-era policy of releasing illegal immigrants into the interior with a court date back in place, the current surge at the border began. That surge has continued, reaching record levels over 2021.

Eventually, the courts got involved after several states sued, leading to an order to reinstate the “Remain in Mexico” policy. Last month, the Biden administration made the move to follow that order, including securing a deal with Mexico, whose president had opposed ending the program in the first place. Of course, that move wasn’t willingly, as the government sought to appeal the decision.

Now, the 5th Circuit has slapped down that attempt at an appeal, and the decision is absolutely savage. That’s not hyperbole. Read every word of this. It’s one of the most direct condemnations from a court I’ve ever seen of a president.

There are a lot of highlights here. At one point, the court has this to say, countering the government’s claims that the case is moot and that the Biden administration can skip various review processes. Get a load of this language.


DHS’s proposed approach is as unlawful as it is illogical. Under Supreme Court and Fifth Circuit precedent, this case is nowhere near moot. And in any event, the vacatur DHS requests is an equitable remedy, which is unavabile [sic] to parties with unclean hands. The Government’s litigation tactics disqualify it from such equitable relief.

The court also scoffed at the idea that Biden can simply print out a word document and order the ending of a program that impacts the states in such a way without going through any of the legal and legislative review processes. Remember, Democrats celebrated the courts denying Donald Trump the right to end DACA based on the Administrative Procedures Act.

In laughable fashion, Biden thought he could get away with violating the precedent his own party forced into place just a few years ago. Nope, that’s not how any of this works.

The Government also raises a slew of reviewability arguments, contending that no court may ever review the Termination Decision. DHS claims the power to implement a massive policy reversal—affecting billions of dollars and countless people—simply by typing out a new Word document and posting it on the internet. No input from Congress, no ordinary rulemaking procedures, and no judicial review. We address and reject each of the Government’s reviewability arguments and determine that DHS has come nowhere close to shouldering its heavy burden to show that it can make law in a vacuum.

On the merits, the Termination Decision was arbitrary and capricious under the APA.


The beat-down just continues from there, and it is clear that the courts are sick and tired of the Biden administration violating the law and then attempting to game the judicial system to still get what they want. Whether that means not honoring precedent or the White House hoping they can simply run out the clock before litigation can finish, the 5th Circuit is not here for their games.

The old adage “be careful what you wish for” applies here. Democrats, for four years under Trump (and long before that), abused the judicial system to try to stop nearly everything the then-president attempted to do. Activist judges often played along, setting precedent that is now working against the Biden administration. You absolutely love to see it.


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