Well, that didn’t take long. Just six days into the Biden administration, the federal courts, stacked as they are with judges appointed by Donald Trump and confirmed by Mitch McConnell’s Senate, have moved to thwart a piece of the new president’s agenda. I could say “I told you so,” because I did.
The first strike was, perhaps predictably, against Biden’s immigration platform. The day of the inauguration, the acting secretary of the Department of Homeland Security issued an order pausing most deportations for 100 days. The order wasn’t radical; it didn’t change the policy about who can be deported. It aimed simply to stop the government from shuttling as many people as possible out of the country as quickly as possible while the new administration tries to figure out which deportations should take priority and whether the people facing deportation received due process of law as opposed to whatever the hell Trump was doing.
The order was smartly designed to avoid judicial review. It did this by framing the “pause” not as a policy change but as “a review of policies and practices” in the interest of “focusing the Department’s resources where they are most needed.” These are all logistical and clerical functions that squarely rest within the executive branch’s authority.
But such minor concerns like “how the government actually works” do not matter to Trump judges or Trump-aligned state attorneys general. Texas AG Ken Paxton, last seen trying to overturn the results of the 2020 election with one of the most ridiculous lawsuits I’ve ever seen, asked a federal judge to place a nationwide temporary restraining order on Biden’s deportation pause. Paxton, who is under investigation for bribery and abuse of power, argued that in the final days of Trump’s term, the DHS signed an agreement promising to run any policy changes by him.
For the record, the DHS does not have to ask permission from Paxton to enforce, or not enforce, its own rules any more than it has to ask Paxton permission to go to the bathroom. The attorney general of Texas is not a hall monitor.
Nonetheless, Paxton’s request for a nationwide temporary restraining order halting Biden’s pause was granted on Tuesday by US District Judge Drew Tipton. Tipton is a Trump appointee, who’s been a judge for barely six months. He ruled that Texas had standing to sue the Biden administration (which is wrong). He also ruled that the DHS likely exceeded its authority by implementing the pause—which is both wrong and ludicrous in light of the Supreme Court’s decision in the DACA case last year, which reaffirmed the executive’s broad authority to determine who should be deported and when they have to leave. At Slate, Mark Joseph Stern went into detail about Tipton’s “bizarre decision,” writing, “Tipton does not appear to have a rudimentary understanding of either immigration law or the practical realities of the immigration system.”
Moreover, by making the ruling a nationwide injunction, Tipton engaged in an act of deep hypocrisy and bad faith. The Republican legal establishment has spent the last four years complaining about nationwide bans based on single district-court rulings. Lindsey Graham and his fellow Senate Republicans even introduced legislation to stop nationwide injunctions, because courts were using them to thwart Trump’s agenda.
I’ll wait for Graham to blast Paxton and Tipton for this case. I’m sure that press conference is coming, any minute now.
Luckily, this particular instance of judicial hackery is not necessarily an insurmountable hurdle for the Biden administration. It’s not like Tipton is going to pay for plane tickets or drive a bus across the border himself to deport people. The Biden administration can stick to its original plan simply by slow rolling the relocation of immigrants under the rationale that Homeland Security will get around to it when it can. If DHS functionaries simply delete all the cookies from their computers, who can say if anybody is around who remembers the department’s Expedia login?
What the executive order did was test the good faith of conservative jurists. And I think we got an answer about how much that good faith is worth. Absolutely nothing. At the very first opportunity, a Republican attorney general and a Trump judge got together to create a bad ruling to try to stop something that is facially constitutional and legal.
This is what Trump judges do. This is what I’ve been telling people they would do to Biden’s agenda. Getting mad at a Trump judge for issuing a borderline incoherent, purely partisan injunction to upend a Democratic president is like getting mad at a shark for eating a surfer: It’s a damn shark; bring a bigger boat next time.
To me, the key question arising from this decision is whether Biden, or centrist Democrats, will adjust their magical thinking about the courts. Trump judges have been put in place specifically to thwart a Democratic agenda. Any talk or hope that the courts will be partners in the restoration of the rule of law is folly.
In this instance, we have one Trump judge, on the lowest federal court, who has been on the bench for less than a year, taking it upon himself to try to thwart an entire national immigration order, using bad logic untethered from any facts or understanding of how deportations even work. Trump appointed 226 of these people. Most of them will serve for the rest of their natural lives. There is almost no hope of getting Biden’s agenda upheld in courts that have been stacked with people like Judge Tipton.
And let’s not forget the Supreme Court. Thanks to Trump and McConnell’s evil codependent dance—which gave us Neil Gorsuch, alleged attempted rapist Brett Kavanaugh, and Amy Coney Barrett—Biden will be facing a Supreme Court that has been manipulated to produce a conservative majority for a generation.
To paraphrase Sean Connery in The Untouchables: Now, what is Biden prepared to do? And what is the Senate, barely controlled by the Democrats for the next two years (assuming no Democrats die from a state with Republican governors), prepared to do? What’s the plan? Pass legislation and hope for the best? Sign executive orders and hope conservative judges remain committed to their principles of so-called “judicial restraint”? Or is the plan simply to sign the orders, pass the legislation, watch it get knocked down in the courts, and say “Welp, we tried. Four more years.”
Obviously, I think the only solution here is to expand the courts. We need more justices on the Supreme Court and more judges on the lower courts. We need more judges to balance out the bad-faith actors Trump and McConnell placed like land mines throughout the federal judiciary. And if Republicans later take control of both the legislative and executive branches of government and have the votes to repack the courts with additional conservative judges, so be it. At least Democrats will have had four-to-eight years of passing their agenda and developing good legal precedents for their authority. That literally can’t be worse than where we are now, because where we are now is facing courts that have already been packed with conservatives.
Judge Tipton just showed this administration how much of a hack he’s willing to be. And he is not alone. Democrats won Congress and won the White House, but there are three branches of government, not two. If Democrats don’t win the courts, they will still suffer defeat.