The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Yesterday I joked, "We are now fully 24 hours into the Biden administration, and still no nationwide injunction. So far, so good." That was so January 21.
Today, January 22, Texas has sought the first nationwide injunction against the Biden administration. Texas has challenged the 100-day moratorium on deportations. You can download the Complaint and Motion for a Temporary Restraining Order. This case differs from past suits in one significant regard: on January 8, DHS and Texas reached an agreement that limited changes to immigration policy. In effect, the Trump Administration tried to place handcuffs on the Biden Administration.
First, let's break down this agreement. The agreement states that certain immigration policies "result in concrete injuries to Texas." For example, a "decrease of any immigration enforcement priorities" would injure Texas. Why?
Such changes can impact Texas's law enforcement, housing, education, employment, commerce, and healthcare needs and budgets. The harm to Texas is particularly acute where its budget has been set months or years in advance and it has no time to adjust its budget to respond to DHS policy changes
This is the sort of argument advanced in the DAPA litigation from 2014 (feels like a lifetime ago). Here, the parties are trying bolster a case for standing. Spokeo explained that stating something is an Article III injury doesn't make it so. But these findings could bolster Texas's case in court. Under 5th Circuit precedent, Texas would have standing.
Second, the agreement establishes a "binding and enforceable commitment between DHS and Texas." Specifically, DHS commits to "consult Texas and consider its views before taking any action, adopting or modifying a policy or procedure, or making any decision that could . . . reduce, redirect, reprioritize, relax, or in any way modify immigration enforcement." DHS is not required to do what Texas proposes. But the federal government must "consult Texas and consider its views before taking any action." The agreement states, "In case of doubt, DHS will err on the side of consulting with Texas." And DHS pledges to "Utilize its immigration authorities, to the maximum extent possible, to prioritize the protection of the United States and its existing communities." Critically, DHS must provide "Texas with 180 days' written notice" of any proposed change to immigration enforcement.
In effect, there is a mini notice-and-comment process in reverse. DHS must fairly consider Texas's views before making any changes. The failure to consider those views would yield a breach of the agreement. And the feds must notify Texas 180 days in advance of any change. Plus, "DHS will in good faith consider Texas's input and provide a detailed written explanation of the reasoning behind any decision to reject Texas's input before taking any action."
Third, if DHS fails to comply with this policy, Texas could sue to enforce the agreement, and vacate the new policy. DHS expressly waives the defense that there is an adequate remedy at law:
Any such party shall, therefore, be entitled (in addition to any other remedy to which it may be entitled in law or in equity) to injunctive relief, including specific performance, to enforce such obligations, and if any action should be brought in equity to enforce any of the provisions of this Agreement, none of the parties hereto shall raise the defense that there is an adequate remedy at law.
Fourth, there is a forum shopping, err, forum selection clause:
If settlement cannot be reached at this level, the disagreement may be adjudicated in a United States District Court located in Texas.
Would the Biden administration be able to sue Texas in D.D.C.? Forum non conveniens?
Fifth, the agreement requires 180 days notice to terminate.
Any party may terminate its involvement in this Agreement by submitting a request in writing to the other parties and providing 180 days' notice of intent to terminate its involvement in this Agreement. The termination will be effective 180 days after the written termination request was submitted or upon a date agreed upon by all parties, whichever is earlier. Termination by one party of its involvement in this Agreement shall not terminate this Agreement as to the remaining parties.
Here, the Biden administration is in a tough spot. To move to terminate the agreement, according to its terms, suggests the agreement itself is valid in the first place. If the agreement is invalid, it could be terminated immediately.
Sixth, the agreement was signed by none other than Ken Cuccinelli. Here is his signature block:
Kenneth T. Cuccinelli II
Senior Official Performing the Duties of the Deputy Secretary
Signed individually and collectively2
FN2: "Signed individually and collectively" as used here indicates that the agency is entering into this Agreement both (1) for itself, independently, and (2) along with the other entities that comprise DHS, collectively. Should one agency, for whatever reason, cease to be a party to this Agreement, this Agreement shall still survive for all other parties and be read and interpreted as if the removed party had never been a party to this Agreement.
Once again, the courts will have to determine the status of Cooch's appointment.
I will have more to say about this case soon. The court is holding a TRO hearing at 4:00 pm.
Update: The court held a 90 minute oral argument, but did not issue a ruling.