Looks like we will have another debate on the national reach of federal district court judges on immigration policy — but bet on the tone changing considerably. Last night, a judge in Houston issued an injunction preventing the Biden administration from halting deportations of illegal immigrants. The state of Texas argued — successfully, for now — that departing from statutes even under the aegis of prosecutorial discretion would impose an unfair financial burden on the state:
A federal judge late Tuesday indefinitely banned President Joe Biden’s administration from enforcing a 100-day moratorium on most deportations. U.S. District Judge Drew Tipton issued a preliminary injunction sought by Texas, which argued the moratorium violated federal law and risked imposing additional costs on the state.
Mr. Biden proposed the 100-day pause on deportations during his campaign as part of a larger review of immigration enforcement and an attempt to reverse the priorities of former President Donald Trump.
It’s the second such ruling on this issue from Tipton in the past month, as NBC News explains:
Tipton, a Trump appointee, initially ruled on Jan. 26 that the moratorium violated federal law on administrative procedure and that the U.S. failed to show why a deportation pause was justified. A temporary restraining order the judge issued was set to expire Tuesday.
Tipton’s ruling did not require deportations to resume at their previous pace. Even without a moratorium, immigration agencies have wide latitude in enforcing removals and processing cases. …
It was not immediately clear if the Biden administration will appeal Tipton’s latest ruling. The Justice Department did not seek a stay of Tipton’s earlier temporary restraining order.
The White House probably didn’t appeal the earlier ruling because of its limited scope in time. Now that Tipton has made the suspension indefinite, it seems more likely that the Biden administration will appeal the order, although the Fifth Circuit is not likely to be much friendlier on this point. Biden’s progressive allies wanted this moratorium on deportations in place, and they’re not going to sit quietly if Biden doesn’t try to overturn the injunction against it. NBC News does point out, however, that Biden did restart deportations after the first injunction, numbering in the hundreds to Central America over the last month, so it’s possible that his heart isn’t really in this fight.
If this all sounds familiar, it should. Simply substitute Honolulu for Houston and you get the judicial interventions in Donald Trump’s immigration enforcement EOs. Even NBC News concedes the sauce-for-the-gander quality of this development, noting that this fight commenced almost four years to the day that Democrats went forum-shopping in Hawaii to block Trump’s bar on immigration from seven hostile and/or terror-ridden countries, the so-called Muslim ban. Democrats were pretty stoked to have that avenue and to succeed in that judicial intervention, while Republicans complained about judicial activism. We can expect a replay of that match, but with the two teams switching sides.
This is less about judicial activism than it is about congressional pusillanimity, however. The court in this instance (and arguably in the earlier instance as well) is only forcing the executive to abide by existing statute. If Biden wants a different policy on enforcement, he needs to get Congress to change the statutes — which Congress is loath to do, as Congress is loath to do anything that might force them to take real votes and actually govern as the Constitution requires. They much prefer presidents to rule by edict so that they can indulge in their usual performance-art stunts.
If Biden is really interested in getting back to normalcy, or even better to return to constitutional governance, he won’t fight this order too much. That would force activists to put pressure on Congress, where compromises will have to be made for immigration reform that would include enhanced security — rather than the performance-art proposal that Biden sent to Congress that has zero chance of passage. This should be a good test of Biden’s pledge, as well as a good measure of everyone’s hypocrisy.