I don’t know if lower-court judges should be able to vacate executive agency rules on their sole authority—and then be able to apply those legal rulings to the whole nation. I think the issue is legitimately complicated, and it makes me sit on the fence while staring at quicksand and scorpions on either side. The judiciary is supposed to check the Congress or the Executive Branch when they stray too far from established laws or constitutional principles. But allowing one random, unelected district court judge to void federal policy enacted by the people’s representatives also seems deeply wrong, antidemocratic, and even corrupt.
The issue of whether judges should have this power came up during a heated oral argument at the Supreme Court this week. The case, United States v. Texas, involves an appeal of US District Judge Drew Tipton’s decision to “vacate” a rule issued by Department of Homeland Security Secretary Alejandro Mayorkas. Mayorkas ordered Immigration and Customs Enforcement (ICE) to prioritize detaining undocumented immigrants who “pose a threat to national security, public safety, and border security.” Tipton is a Trump appointee for the Southern District of Texas who is basically Stephen Miller with better hair. He vacated Mayorkas’s order, saying that the federal government cannot pick and choose which immigrants to detain but must detain all immigrants who are out of status.
Tipton’s order is legally dubious and practically unworkable. Courts have long held that the Executive Branch (of which the DHS is a part) retains a level of discretion on whom to prosecute and how. Prosecutors, for instance, can decide to focus on white-collar criminals instead of turnstile jumpers (or do the exact opposite when they’re cowards). Moreover, even if the DHS wanted to detain every single undocumented immigrant in this country, it couldn’t. The DHS and ICE have neither the labor force nor the detention space (nor the toothbrushes, apparently) to round up and process every undocumented immigrant, no matter how dearly white nationalists wish they could.
The Biden administration’s Department of Justice made all of these obvious arguments against Tipton’s order. Far more interesting, though, is another argument the DOJ made—an argument to curb the power of Tipton, and the legion of Trump judges just like him, to muck up the normal procession of laws in the future.
When it comes to executive agencies, federal law says that judges can “set aside” agency actions that are “unlawful”; it defines as “unlawful” actions that are arbitrary and capricious, contrary to a constitutional right or power, or outside the agency’s jurisdiction. Biden’s DOJ argues that judges like Tipton have misunderstood the “set aside” rule: It argues that judges can discard agency actions that they think are unlawful, but they can’t enjoin those agency rules from applying to the rest of the country.
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It’s a radical argument that would severely limit the power of judges to stop the Executive Branch. It’s also a problematic argument. While limiting the power of judges like Tipton is a great idea, allowing executive agencies to make rules and take actions without robust judicial checks is pretty scary. The group of people running the DHS and ICE before the Biden administration should be enough of a reminder that things can always get worse.
As if to prove just how thorny the implications of the DOJ’s argument are, the justices most hostile to the DOJ’s position were an unlikely trio that included Chief Justice John Roberts, alleged attempted rapist Brett Kavanaugh, and Ketanji Brown Jackson.
Roberts essentially mocked US Solicitor General Elizabeth Prelogar as she made her case on behalf of the Justice Department, incredulously interjecting “wow.” Jackson said there was a “conceptual problem” with the DOJ’s arguments—mainly that if a judge thinks an agency’s rule is unlawful, they can’t easily “disregard” it without also enjoining it. Kavanaugh adopted a tone that most closely resembled Matt Damon playing him on Saturday Night Live as he argued that federal judges can’t simply have been wrong about the extent of their statutory power all these years.
It should be noted that all three of these justices spent significant time on the US Court of Appeals for the D.C. Circuit, and the D.C. Circuit is where most challenges to federal agency rulemaking are heard. Judges on that circuit certainly act like they are the regulators of the regulatory agencies. At one point, Roberts joked that when he was on the D.C. Circuit, he vacated agency actions “five times before breakfast.”
But this gets to the heart of the problem: While federal agency actions are traditionally reviewed by the D.C. Circuit, the power to vacate agency rules is technically held by any judge, anywhere. In this case, Judge Tipton is essentially a roadside judge in Texas who tells defendants what he does or doesn’t take kindly to while chomping on a stalk of hay. Tipton is the guy Boss Hogg runs to when he needs someone to rubber-stamp his violations of the Fourth Amendment rights of the Hazzard boys, but in this case the local law enforcement boss is Texas Attorney General Ken Paxton. Paxton and Tipton work hand in glove, with Paxton inventing a spurious legal theory for ignoring the Biden administration and Tipton saying “brilliant.” Giving these two yokels the power to limit the entire federal government whenever they feel like it is very different from putting that power in the hands of the D.C. Circuit that Roberts, Kavanaugh, and Jackson rose to defend.
On the other side, Justice Neil Gorsuch seemed very interested and even supportive of DOJ’s arguments. But Gorsuch likely has an ulterior motive: He was out front screaming about the vacated orders and nationwide injunctions that landed on the executive agencies… when Donald Trump was president.
That’s the final wrinkle in this legal dispute. Trump judges are an odious problem for the Biden administration, but lower-court judges (from both parties) were some of the only institutionalists that held the line against the excesses of the Trump administration. Obviously, the conservative-controlled Supreme Court is quick to step in and allow Republican policies to go forward while they slow-walk decisions (like Tipton’s) that go against Democratic administrations. But that’s a different problem from the one here, which is about the power federal judges hold and whether they should keep it. Having a strong check to stop federal agencies looks very different depending on which party is in control of those federal agencies.
When I try to remove myself from the partisanship inherent in how these orders play out, the corrupt alliance between Tipton and Paxton, and the old-school institutionalist concerns of Roberts, Kavanaugh, and Jackson, I’m still left with a big fat “I don’t know” on the essential question of whether district court judges should have the power to do this. “I want judges to enjoin federal agencies, if the judges are good” is not an intellectually defensible position, particularly once you accept the fact that Trump judges exist and will continue to wield power for some time. “I don’t want judges to be able to stop federal agencies from making rules” also seems woefully naive, given not just what Republicans do when they control the executive but also the fact that every president will try to push the limits of their power.
All I can say confidently and stridently is: A judiciary is only as good as the people running it, and right now we have some terrible people in charge. Left unchecked, Tipton will pull these juvenile rulings out of thin air, again and again. But left unchecked, another Republican administration will fully weaponize the executive agencies like the DHS and ICE.
I’ve never been good at games of “pick your poison.” If I ever figure out an antidote for this mess, I’ll let everybody know.
