Texas Strikes First, Seeks To Block Biden Administration's 100 Day Moratorium on Deportations (Updated)

On January 8, DHS and Texas signed agreement that put limits on changes to immigration policy.


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.

NEXT: "Cancel Culture Comes for Will Wilkinson"

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  1. 3, 2 , 1 before Ilya Somin weighs in

    1. Well, yeah. Doesn’t that fall into the “duh” category? A professor with a lifetime interest in a field chiming in to discuss a recent development in that field. Like if there was a major case or change in First Amendment law (or gun law, or someone trying to erase something from internet searches), I think we’d all expect Eugene to weigh in. We’d all be a bit disappointed if he did not, in fact, given his years-long interest in the above areas of the law.

      1. A professor with a lifetime interest in a field

        I wasn’t aware that “fuck national borders” was considered a field. Learn something new every day.

        1. Never give up your snarky, partisan ignorance.

          It defines you.

          1. Says the fact-free sniper troll. Drink!

            1. Do you struggle with alcoholism? I can’t think of any other reason why you’d be projecting that issue along with your other deficiencies.

              Nobody here is your counselor, or your mother. Solve your own problems.

              1. I can’t think of any other reason

                Only because your memory of our past encounters is poor. Too much of the sauce will do that to you.

                1. You’re speaking to someone who drinks maybe 3-5 times a year. Your insults, like your arguments, miss their mark.

                  Enlist in a program and become a better person. Maybe your partisan delusions are just a result of your mental fog.

                  1. Ah, then you have precisely zero excuse for your raft of sophomoric, hurtful postings you fling around like a monkey flings its feces. I was trying to give you a charitable out.

        2. There are infinitely many things of which you are unaware and not all infinities are created equal. Some infinities are more infinite than others.

  2. The idea that a prior administration can dictate policy for an incoming administration is abhorent to anyone who believes in democracy.

    Furthermore I suggest everyone look at the Flynn prosecution and the conservatives position that prosecutorial discretion is absolute. But then consistency and intellectual integrity never was a hallmark of the fanatical Trumpists, was it.

    1. You did not think that when Trump wanted to dump the Obama EO’s.
      So much for your concept of democracy.

    2. What comes around, goes around….

      1. EXACTLY!!!

        I said for years that the “Orangeman Bad” litigation would screw the next Dem President, and now it’s a case of “checkmate.”

        1. Your premature claim of “checkmate” strikes me as similar to other premature things.

          1. When all else fails, abuse the plaintiff.

            — Cicero

    3. Does that also go for the EPA’s sue and settle tango with environmental NGO’s where the EPA gets an like minded organization to sue them to do something they wanted to do anyway but lacked the authority to do so, then a compliant federal judge rubberstamps the whole thing.

    4. “The idea that a prior administration can dictate policy for an incoming administration is abhorent to anyone who believes in democracy.”

      It’s always been possible for that to happen in certain cases. IF the DoD signs a contract with a given firm under administration A, administration B can’t simply abrogate that contract. See the contracts clause of the US Constitution.

      Now, it remains to be seen if this agreement Texas is claiming constitutes a valid and binding contract (I doubt it).

      1. Me too. A contract, as the attorneys on this site well know must contain an agreement for each side to exchange things of value, whereas this was policy, plain and simple where the Trumpies wanted to extend their immigration policy into the next administration.

        But again, I just wonder how all those folks yelling that the government has sole discretion to drop or continue prosecution feel about this and DACA, or maybe that discretion only applies to sleaze ball people like Flynn.

        1. Agreeing to drop a suit for a specified settlement certainly constitutes a thing of value.

          1. This agreement does not arise from the settlement of a prior lawsuit.

            That is clear from the complaint which is linked to in the article.

        2. Actually Sidney, Nancy has sole discretion not to send the bill of impeachment to the Senate. No rule compels her to do so.

    5. Didn’t the Supreme Court rule that President Trump couldn’t undo the Dreamers policy that President Obama put in place? It’ll be interesting to see how this is different.

      1. The difference is they’d do math on the harm and America benefits from immigrants

      2. Didn’t the Supreme Court rule that President Trump couldn’t undo the Dreamers policy that President Obama put in place?


  3. It seems to me they missed a step. Weren’t they supposed to agree to this as settlement in a lawsuit, so the whole judicial branch would feel offended if the next administration reneged?

    Can’t do sue and settle properly if there isn’t a lawsuit, and I don’t see where one is mentioned.

    I expect the Biden administration to simply ignore this settlement.

    1. And then when Texas ignores the Bite Me Administration?

      1. Then the Supreme court goes all “supremacy clause” on them, ignoring that it makes the law supreme, not policy, just as they did in that Arizona case.

      2. Then the federal government nationalizes the Texas National Guard and enforces its dictates. I don’t believe that the feds will fuck up reconstruction twice.

        1. You mean like enforcing the Federal Marijuana law?

    2. They just do a sham lawsuit, and then style the thing they’ve mutually agreed to do a “settlement.”

  4. If they can establish reliance, then they can require a notice and comment on the repeal.

    That’s the extent of what they can do, seems to me.

  5. Doesn’t this privilege Texas over the other 49 states?

    1. Perhaps if one of the other states can show an injury related to deporting someone, already eligible for deportation, who this agreement requres to be deported then they could challenge the agreement.

      I’m trying to think of what that injury could possibly be

      1. GDP, tax revenue, emotional damage to relatives. Very easy.

  6. I think this is really the case y’all should get behind:

    ”to invoke a very appropriate quote from the J.R.R.
    Tolkien epic classic, “Lord of the Rings.” The Judicial Branch is currently the only remaining legitimate branch of government and therefore has a duty uphold the checks and balances in the Constitution to curb the unlawful power grab perpetrated on the
    electorate by Defendants. The Court must immediately act to check the power of the Legislative and Executive branches by placing them into a state of stewardship to preserve the status quo ante, pending a preliminary injunction and then until a trial on
    the merits. Plaintiffs hereby request that the Honorable Court enter the Temporary Restraining Order attached hereto enjoining the illegitimate 117th Congress and 46th President (collectively, the “Usurpers”) from enacting any new legislation or making
    any substantial departures from United States policy, foreign and domestic, as it existed prior to their unlawful usurpation of power on January 3, 2021 and January 20, 2021, respectively by appointing a group of trusted special masters to provide oversight to the Usurpers.

    During the course of the epic trilogy, the rightful King of Gondor had abandoned the throne. Since only the rightful king could sit
    on the throne of Gondor, a steward was appointed to manage Gondor until the return of the King, known as “Aragorn,” occurred at the end of the story. This analogy is applicable since there is now in Washington, D.C., a group of individuals calling themselves the President, Vice President, and Congress who have no rightful claim to govern the American People. Accordingly, as set forth in the Proposed Temporary Restraining Order, as a remedy the Court should appoint a group of special masters (the “Stewards”) to provide a check the power of the illegitimate President until this Constitutional Crisis can be resolved through a peaceful legal process of a Preliminary Injunction Hearing and a jury trial on the merits.

    This concept is similar to the concept of placing a corrupted business in receivership or in bankruptcy law, which places a “trustee” in charge of the “debtor-in possession” during the bankruptcy case to rehabilitate the corrupted organization.

    1. The Court hereby appoints a committee of special masters (the “Stewards”), one Steward for each Executive Branch Cabinet Position to be composed of the former members of the previous administration’s Cabinet existing as of August 1, 2020


      1. S0,
        Haven’t you learned that the woke lexicon forbids the use of the m____ word?

      2. Well, this seems to be a “please disbar me” lawsuit.

    2. I feel the need to point out that the King of Gondor had abandoned the throne long before the trilogy. Nearly a millenium.

      1. And technically it wasn’t the King of Gondor who abandoned the throne, as he had died the sole remaining member of his line, it was the other line of Isildur that hadn’t taken it upon themselves to take the throne.

  7. Doesn’t this beat — by 5 days — the record for such suits being filed against Trump?

  8. Why can’t the Federal Government give 180 notice of termination without waiving its right to challenge the agreement? It could be explicit in retaining that right.

  9. The fact that the complaint was filed so particularly in SDTX, Victoria Division caught my attention a little.

    Sure enough, it seems like Victoria currently has the sum total of only 1 full-capacity (a term I just coined to distinguish from senior status) judge. And that judge, Drew Tipton, was appointed by … wait for it … The Donald.

    Plaintiffs could have gone with their usually mainstay, Reed O’Connor in NDTX. There are only 3 other judges in his division (Forth Worth), of which the other full-capacity one is a Trump appointee, while the remaining 2 senior status are Bush 41 anyway. But I guess they were really hoping to get Tipton for some reason.

    A little fun fact in parting: Tipton and O’Connor are nearly the same age and both went to South Texas College of Law Houston, but they didn’t overlap because Tipton ended going there a bit after O’Connor. South Texas College of Law Houston is, of course, also home to Prof. B.

    TGIF & have a good weekend!

    1. “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.” /C. J. Roberts


  10. Keep in mind Deportations prioritize and are at times almost exclusively composed of those who’ve committed crimes (beyond being in the country illegally). These are hardened criminals, not sobbing law abiding mommies raising their future Alberto Einsteins that the Dems are trying to keep here unlike the popular media fueled conception.

  11. Ah, the unifier at work.
    What a refreshing change for the partisan bickering of that evil man who has fallen down the memory hole.

  12. What is the over/under on Texas secession?

    1. Not going to happen. Lots of Texans are crazy, not just me, but most of us don’t want to starve.

  13. who is the fed d ct judge?

  14. Not my President. The resistance to the Commander in Cheat should be 100%. The neo-Marxist traitor killed thousands of jobs Day 1. Welcome to Venezuela Americans. You cheaters deserve the agonies Biden and his tech billionaire puppet masters are planning.

    1. Russian Speak & Spell strikes again.

    2. Trump counties have the GDP of Venezuela

      1. People live in California and NY because that’s where the action is, and CA is a nice state. They have powerful business because people went there. The bloated, intrusive, parasitic governments grew up like lichen around the success, and now fancy themselves the cause of it.

  15. Agreement is invalid. Ignore it.

  16. I think “suck it libs” is how most feel about it….

    1. “I think…”

      With that, we knew the rest of your post would be meaningless.

  17. Vanquished, obsolete, disgraced right-wing bigots such as Ken Cuccinelli are among my favorite culture war casualties.

    Impotent, exposed, authoritarian, Trump-fellating Federalist Society losers such as Jeffrey Clark are up there, too.

    Carry on, clingers . . . So far and so long as better Americans permit.

    1. Yes, we do permit you quite a lot, don’t we.

  18. Kirkland, two words: Great Awakening.

    Diphtheria caused it the last time, Wuhan Covid and Joe Bite Me well may this time.

    You’ll love the awakened country.

    1. That would have been a great name for the Volokh Conspiracy — Great Awakening Gazette.

      1. The degree of your ill-will knows no bounds.

        1. Ask the proprietor to censor or ban me. He has done it before.

          Or quit whining.

  19. This seems a classic example of a collusive “settlement,” a statement of mutually agreed principals written in the complete absence of any actual dispute, and hence any actual case or controversy, styled as a settlement in order to enable both parties to evade legal requirements (because they mutually agreed to) or impose their will on third parties, with the lawsuit being a sham to enable them to style their mutual agreement a “settlement.”

    I would think the Biden administration might be able to get out of it on those grounds.

    1. The states have been liberally granted standing in recent years when it comes to suing Trump. But perhaps there is some doctrine about not contracting away government powers that can be invoked. I assume this is just a contract, an out of court settlement, rather than a judicially approved consent decree.

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