As reported here last week, Texas sued the Biden Administration over a Memorandum issued by the Department of Homeland Security directing that all deportations of illegal aliens — the term in the statute — be halted for a period of 100 days. The Memorandum applies to all cases where a Final Order of Removal has been entered against the alien which is the last judicial step before DHS takes the final step of physically removing the person from the United States.
Texas sought a temporary restraining order — an initial step before seeking a preliminary injunction — at the time it filed the complaint, and a hearing on that request took place last Friday. Yesterday Federal District Judge Drew Tipton — an appointee of Pres. Trump — issued the TRO requested by Texas and ordered that the Memorandum not be enforced anywhere in the country for a period of 14 days. During that time both parties will more fully brief the issues and provide factual evidence to the Court, after which the Court will conduct another hearing on whether to issue a Preliminary Injunction that would remain in place while the litigation takes place.
I noted in my earlier piece that the Texas Attorney General’s office engaged in its own version of “judge shopping” — just as Democrats and liberal interest groups do when they file complaints and seek injunctive relief in places like San Francisco and Seattle. Texas filed its complaint in the Southern District of Texas, the main courthouse for which is in Houston, but chose to file in the Victoria Division where Judge Tipton is the only full-time federal judge who sits in that Court. Judge Tipton might want to clear his calendar for the next four years because I think Texas might create a well-worn path to the Victoria Division doorway as it takes on the Biden Administration as the Texas Attorney General has promised to do.
The complaint is based on an agreement signed between DHS and Texas during the Trump Presidency in which DHS promised to consult with Texas in advance of making any policy changes with regard to immigration matters and to give Texas notice in advance of its intention to do so, as any policy changes that reduced enforcement of federal immigration policy would create a financial hardship on the citizens of Texas.
The types of claims advanced by the Complaint include constitutional arguments that by suspending enforcement of federal statutes as written — the Attorney General has only 90 days by law to remove an alien from the United States after a Final Order of Removal is entered — the Biden Administration Memorandum violates the constitutional obligation of the Executive to see that the laws are “faithfully discharged.”
The Complaint also alleged that the Memorandum was issued in violation of the Administrative Procedures Act. This was the “go-to” argument employed by Democrats and liberal interest groups to repeatedly bring court challenges against the Trump Administration’s changes to federal policy, either by Executive Order or federal agency rulemaking.
In his Order yesterday, Judge Tipton went right at the issue of the 100-day pause ordered by the Memorandum being an effective alteration of the statute ordering removal within 90 days and found that such an alteration without any proper legislation or administrative rulemaking must be enjoined pending further proceedings.
The Order expressly states that no part of the decision is based on a determination as to the validity of the written agreement between Texas and the federal government entered into during the Trump Administration. Judge Tipton emphasizes that the implications of such an agreement, and its enforceability against a new Administration, are such that further briefing and argument by the parties is necessary before making any determination on that issue.
But on the issue of the issuance of the Memorandum violating the Administrative Procedures Act, Judge Tipton ruled that Texas’s filing has satisfied the test for issuance of injunctive relief, which is as follows:
(1) there is a substantial likelihood that the Texas will prevail on the merits;
(2) there is a substantial threat that irreparable harm will result if the injunction is not granted;
(3) the threatened injury outweighs the threatened harm to the defendant; and
(4) the granting of the preliminary injunction will not disserve the public interest.
The first and fourth elements of the test are noteworthy here. Judge Tipton’s preliminary finding is that DHS violated the Administrative Procedures Act by issuing a blanket memorandum on Day One of the Biden Administration that altered federal law — welcome to “Lawfare” — and that restraining the Biden Administration from carrying out its policy is in the “public’s interest.”
In addition to finding that the Memorandum is inconsistent with existing statutory law, the Court also found that issuance of the Memorandum in the manner in which DHS acted was “arbitrary and capricious.”
Here, 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.
It remains unknown why a 100-day pause is needed given the allegedly “unique circumstances” to which the January 20 Memorandum alludes. Indeed, despite such unique circumstances, DHS did not state or explain why 100 days specifically is needed to accomplish these goals. The silence of the January 20 Memorandum on these questions indicates that the terms provided for in the Memorandum were not a result of “reasoned decision-making.”
Judge Tipton addresses one other issue that is significant, and will likely be a subject of much litigation in the years to come — his decision to enter a TRO that applies nationwide rather than just to deportation proceedings taking place in Texas. He acknowledges some agreement on his part with the view that the issuance of such injections by district court judges is a topic of concern, but states that he is bound to follow Fifth Circuit court precedent and the Fifth Circuit has held that nationwide injunctions are within the district court’s authority when justified by the facts of the case.
He determined that such was the case here in order to promote uniformity in the application of immigration laws throughout the country. If the Memorandum were to remain in effect in all states other than Texas, aliens subject to a Final Order of Removal but not being removed in other states could travel into Texas and then be subject to removal. This would create the potential for hardship and confusion for aliens not in custody who would suddenly find themselves subject to removal simply by moving from one state to another.
As noted, TROs are temporary in duration — 14 days. There will be another hearing scheduled after the parties file further evidence and arguments with the Court. The Biden Administration could appeal to the Fifth Circuit, but they would likely lose there as a TRO is not normally appealable right away. They may have to wait until after the Preliminary Injunction hearing and the development of a more complete “record.”
Alternatively, the Biden Administration could try to reissue the Memorandum after addressing some of the issues raised by Judge Tipton’s ruling. Whether they do that or attempt to simply “power through” his reasoning at a preliminary injunction hearing in two weeks remains to be seen.
I’m thinking maybe I should open a coffee and donut concession on the street in front of the Victoria Division Courthouse. I think that might be a busy place in the months and years ahead.