Judicial Supremacy Strikes Again

The bane of the Trump presidency is already thwarting President Biden.

CNN legal analyst Joan Biskupic worries that “Defeat in Texas shows how the conservative judiciary can thwart Biden’s agenda.”

A federal judge’s action Tuesday preventing President Joe Biden’s 100-day pause in deportations demonstrated the land mines that await the new administration in the nation’s courts.

The short-term order by the Texas-based judge could also force a confrontation up to the US Supreme Court, where the Biden legal team already faces hard choices over how aggressively to press new legal positions before the nine justices — six of whom are conservatives, with three appointed by former President Donald Trump.

US District Judge Drew Tipton, also a Trump appointee, sided on Tuesday with Texas Attorney General Ken Paxton, a Trump loyalist who has challenged Biden’s temporary suspension of deportations.

The nationwide scope of Tipton’s order further intensifies debate over broad-scale actions against the executive branch imposed by a lone judge, which were the bane of the Trump administration.”

These nationwide injunctions have frustrated presidential policy for most of the President’s term with no clear end in sight,” then-Attorney General William Barr declared in a 2019 speech.

Trump Justice Department lawyers routinely were able to convince the Supreme Court to lift those injunctions, although that sometimes took months. The conservative Supreme Court majority may not be as sympathetic to Biden’s ventures as it was to Trump’s.

All told, Tuesday’s court action against an administration barely a week old reveals how tough it might be to advance a new agenda on immigration or any domestic policy if hit with lawsuits before judges who became increasingly right-wing during the Trump tenure.

As Biden promotes new programs and encounters legal objections, there is no escaping that they will be resolved by life-tenured judges, 30% of whom were named by Trump.

[…]

Paxton, who led a failed lawsuit at the Supreme Court contesting Biden’s election victory over Trump, contended that the 100-day suspension violated federal procedural requirements and breached a pact the Trump administration had made with Texas just before Trump left office. It dictated that the Department of Homeland Security would consult with the state before changing certain immigration practices.

It is not clear whether such recent agreements made with various states could be legally enforced. Tipton said he would need more time and additional legal briefing to review the question as he set the 14-day temporary restraining order.

But crucially, Tipton agreed with Texas that it appeared the suspension violated the Administrative Procedure Act’s safeguards against “arbitrary and capricious” executive action.

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,” Tipton wrote.

I have no strong view of the wisdom of Biden’s moratorium but am bemused by the process.

Despite having an unusually strong interest in politics going back more than four decades and having studied Political Science for almost as long—including quite a number of law and public administration courses—I somehow managed to make it into the Trump presidency oblivious to the Administrative Procedures Act. It seemed obvious to me that, if one President created a policy via Executive Order, a successor ought to be able to reverse it with similar dispatch. It turns out, not so much. Despite incredibly better staff work than his predecessor, it appears Biden is now getting stumped by the same requirements.

We shall see if Biskupic is correct about the courts being less disposed to Biden’s cause than to Trump’s. Certainly, Trump lost much more than he won in court. Of course, that had more to do with his administration’s sloppiness than ideology.

Regardless, while Barr turned out to be an abysmal Attorney General, putting his loyalty to the President who appointed him over his duty to the Constitution and the public, I wholeheartedly agree with him that having a single district court judge be able to overturn presidential action for the whole country turns the entire Constitutional order on its head.

It may be time to create a special court that deals solely with challenges to the federal government. I don’t know what it would look like, exactly, but it would have original jurisdiction over these cases, with appeals going directly to the Supreme Court. That would prevent judge-shopping, consolidate expertise, and streamline the process.

FILED UNDER: Law and the Courts
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. SKI says:

    I think you are missing why this particular TRO is so insane: It is stopping the Administration from not doing something. That is, this Court is saying it can compel the Executive Branch to take a particular, non-mandatory action.

    Previous challenges were to prevent actions, not compel them. A very, very different posture.

    Also, this isn’t an APA issue. It is a claim based on contract law. Texas is claiming that an agreement the Trump Administration signed with them mandates that the Biden Administration can’t change, or even pause to evaluate, its prosecutorial and executive priorities.

    12
  2. OzarkHillbilly says:

    This was predictable. As to what the end result will be… shrug.

    1
  3. Sleeping Dog says:

    Now, what did conservatives say about an activist judiciary?

    3
  4. drj says:

    @SKI:

    Exactly. How does the state of Texas suffer irreparable harm on account of a pause in deportations?

    This is deliberate legal malpractice.

    1
  5. Teve says:

    It may be time to create a special court that deals solely with challenges to the federal government. I don’t know what it would look like, exactly, but it would have original jurisdiction over these cases, with appeals going directly to the Supreme Court. That would prevent judge-shopping, consolidate expertise, and streamline the process.

    Semi-on-topic, one time a mob-connected roommate in Raleigh (i got out of the situation as soon as I realized he was running a book) invited me to a party at his friend’s house, at the most expensive house I’ve ever been in, there were 10 bathrooms, an indoor pool, etc. I said, what does this guy do? ‘He flies around the country acting as an expert witness in court cases. $5,000 a day.’

  6. Andy says:

    Expect more of this to come which, if it continues, is going to destroy the legitimacy of the court system. This is the natural consequence of the desire for expedient policymaking. Administrations are increasingly turning to EO’s instead of the normal rule-making process (to say nothing of legislation).

    I’ve been complaining about the shadow-legislation that is federal rule-making for a long time, but this is even worse.

    1
  7. mattbernius says:

    @Andy:

    Expect more of this to come which, if it continues, is going to destroy the legitimacy of the court system. This is the natural consequence of the desire for expedient policymaking. Administrations are increasingly turning to EO’s instead of the normal rule-making process (to say nothing of legislation).

    I think this is an accurate assessment. It also points out the weakness with the American addicition to “divided goverment” and procedures that histiorically have provided minority parties with a significant amount of control to scuttle forward progress (via the Senate).

    Our present legislative structures are increasingly weighted towards inaction. And there are a lot of people who like that. They also tend to be the same folks who also complain about the fact that the Executive Branch and the Courts are necessarily picking up the slack.

    1
  8. gVOR08 says:

    @Andy:

    Expect more of this to come which, if it continues, is going to destroy the legitimacy of the court system.

    Well, that and decisions by conservative activist judges, like this one. And Moscow Mitch’s past bum’s rush on judges and his likely future obstruction and Merrick Garland. And wack job AGs like Texas’ Paxton. The left’s been suspicious because of the above and now the right thinks the courts are part of the deep state.

  9. Just nutha ignint cracker says:

    @Sleeping Dog: They said that they opposed activist judges making decisions against things they wanted. That’s why we need conservative judges, so all the judicial activism will go toward the right correct causes and in the direction best for “we the people.”

    2