SDTX Enjoins Biden Administration's 100-Day Moratorium on Deportations Based on DACA Decision

Texas v. United State comes full circle.


For much of the last six years, there has been several Texas v. United States cases floating around the federal courts. In each dispute, Texas has asserted that the federal government's enforcement of immigration law was unlawful. The latest case, which I flagged on Friday, challenges the Biden administration's 100 day moratorium on deportations.

Today, a federal judge in the Southern District of Texas has issued the first nationwide injunction against the Biden Administration. Co-blogger Sam Bray wrote about the scope of that injunction. Here, I'd like to flag the Court's "arbitrary and capricious" analysis.

Texas argued that the January 20 memorandum was issued "without any consideration whatsoever of a [more limited] policy." And, Texas favorably cited Chief Justice Roberts's DACA decision. Last June, Regents seemed like a John Roberts special to stop the Trump Administration. It very well may have been. But now, lower courts have been charged with Monday-morning-quarterbacking every change in executive-branch policy.

The federal court in Texas has found that the Biden administration did not engage in "reasoned decision-making" to impose a 100-day moratorium on deportations:

Here, 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. The January 20 Memorandum states that the 100-day pause is required to assess immigration policies because of the "unique circumstances" present with respect to immigration, including "significant operational challenges at the southwest border as [the United States] is confronting the most serious global public health crisis in a century." (Dkt. No. 2-2 at 2). DHS specifically cites to its apparent (1) need for a comprehensive review of enforcement policies, (2) need for interim civil enforcement guidelines, and (3) "limited resources" that would necessitate a pause in executing removal orders. (Id. at 2–5). Additionally, the January 20 Memorandum states that the 100-day pause in deportations is necessary to "(1) provide sufficient staff and resources to enhance border security and conduct immigration and asylum processing at the southwest border fairly and efficiently; and (2) comply with COVID-19 protocols to protect the health and safety of DHS personnel and those members of the public with whom DHS personnel interact." (Id. at 3). The January 20 Memorandum also provides that DHS "must ensure that [the agency's] removal resources are directed to the Department's highest enforcement priorities." (Id.). DHS, however, never explains how the pause in removals helps accomplish these goals. It remains unknown why a 100-day pause is needed given the allegedly "unique circumstances" to which the January 20 Memorandum alludes. Indeed, despite such unique circumstances, DHS did not state or explain why 100 days specifically is needed to accomplish these goals. The silence of the January 20 Memorandum on these questions indicates that the terms provided for in the Memorandum were not a result of "reasoned decision-making." Allentown Mack Sales, 522 U.S. at 374, 118 S.Ct. at 826. 

Regents may have been a pyrrhic victory for progressives.

Will John Roberts stay true to his 2020 posture in 2021? We'll see when the Acting Solicitor General files her first stay application in the next few days. (I am presuming the 5th Circuit denies mandamus). The government will have to move quickly, as this TRO expires in 14 days.

NEXT: The First National Injunction Against the Biden Administration

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  1. What goes around comes around.

    1. I’m not much into spite and revenge as a principle, but I do agree that Texas has managed to meet the threshold of at least a colorable reliance interest, which does mean one needs 1) a bit more judicial scrutiny, and maybe even 2) full-on notice and comment.

      But then I’m not a unitary executive guy. The right flipping on a dime about whether this is an outrage or not is, while expected, pretty lame.

      1. In-between warning conservatives their unitary exec misusing “emergency” (who can forget the prognostications about Democrats declaring a climate emergency and “you won’t like that”), the Democrats were warned about getting their own stuff tied up with national injunctions.

        Both sides made this bed, now lie in it.

        And then there’s the ongoing censorship fight with section 230 changes unless they censor harrassment oh heck our opponent should be silenced as their tweets are harrassing.

        You all are terrible, whoever feels these are good things because of politics of the moment.

        1. This is the precedent, I agree. But the right’s previous arguments were not about the state of the law as it is, but about the principle of government being violated by these things.

          And now, at least this comentariat does not care. Instead pretending that precedent is something they care about. At least those that don’t go in for just owning the libs.

          The left has always been, IMO to it’s detriment, interested in more restrictions in Internet speech; that’s not inconsistent. We’ll see if there’s any actual action.

      2. It is not really flipping S0; it is just the attitude of “turn about is fair play,” no ideology is involved.

        1. “It is not really flipping S0; it is just the attitude of ‘turn about is fair play,’ no ideology is involved.”

          Ugh. No. That’s the entire point- there is NO ideology involved.

          If you have principles, if you have ideology, then you have a consistent position. If your position is simply, “I wanna hurt the other side,” then you have neither principles nor an ideology. What makes this worse, usually, is that many people can imagine their enemies doing something bad, which can then justify their own bad actions.

          I feel like these are two lessons that most people learned in kindergarten- first, “He started it,” is never a defense. Second, “Treat other people like you want to be treated.”

          Somehow, I must have missed the day when the teacher said, “Hey, pot, kettle, turnabout is fair play. Consistent principles are for losers. Why would you apologize when you hit someone, Timmy? Apologies are a sign of weakness.”

          1. I agree that are no principle involved. But not all action is or needs be derived from principles. Tactics are derived from how they more one toward goals that are determined by principles.
            It is just adoption of tactics that both sides uses opportunistically.

            1. But this directly contradicts previously stated principles.

              That makes those willing to flip either liars then or unprincipled now.

    2. BO — Before Obama — politicians understood that the other side would sometimes be in power and moderated their tactics accordingly. But 12 years of scorched earth tactics have consequences.

      If Biden had an IQ above 12, he’d end the impeachment, pardon the Capitol trespassers, and make peace with MAGA. He’d do this because it was in his self interest to do so — like the Saudis and Israelis quietly cooperating with each other.

      1. Do you listen to your own posts?

        You make it very clear that there is no making peace with you for anyone to your left, so demanding it is just more bad faith.

      2. Biden, who called half the country racist also simultaneously is calling for healing and unity, which is Newspeak for submission.

        Also, Biden isn’t really calling things, his handlers are.

        Third, impeachment will proceed as a farce show trial, ultimately resulting in, again, the vindication of the Trump.

        1. “calling for healing and unity, which is Newspeak for submission”

          And what is it when the conservatives here call for it?

          1. “Conservatives” on this message board? Something like this, depending on who you choose:

        2. People with speculative theories that Biden is not the real President, and who have nursed a persecution complex even as his party controlled all 3 branches, is not going to change their tune even if Biden were to start acting like he lost the election.

          1. Then perhaps, Sarc, very prominent idiot folks on your side should not call for re-education camps from Trump supporters in they actually want unit. And, please, in advance, don’t accuse me of nutpicking. I’m talking about sitting Dem members of Congress and more.

            It is true that Biden won via voter fraud. It’s also possible, given China’s history and desires, that they were involved. It’s also entirely true that Republicans folded like a cheap deck of cards. However, about half the country thinks he’s legitimate, even though over half the country believes that he’s president only due to voter fraud.

            But Biden is still president, illegitimately, via an legitimate process. It was a successful coup. These things happen. Senator Palpatine became Emperor Palpatine through a legitimate process though illegitimate means.

            Does this make sense? It’s not denying the premise, only the outcome.

            In short, pretending he’s not president is akin to not paying your income taxes because the 16th Amendment was not ratified properly…they are still going to throw your ass in jail like Wesley Snipes for not paying.

            1. You change the subject to reeducation camps, which show no signs of occurring, and then just to bullshit about there being a coup.

              Yeah, your calls for unity are nothing to be listened to, because it’s clear you are using the word as an attempt at political leverage, and there is nothing further from your delusion-filled mind.

              1. Sarcastro, the problem with you, is that you never keep your software up to date with the latest narrative, combined with your inability to make logical connections that are as obvious as the nose on your face.

                Prominent Dems calling for “reeducation camps” (I didn’t call them concentration camps, you did) is not, ah, unifying. That’s your nose, do you see it? Okay, moving on.

                And when did I ever call for unity? That, mon ami, is YOUR delusion filled mind, once again, making someone’s argument what you want to argue against rather than what it actually is. I said Biden’s call for unity was disingenuous because in the same breath he calls 1/2 the country racist.

                1. Yeah, I’m going to mock your reeducation camp paranoia, and am not to worried about it.

                  Dr. Ed 2 mentioned unity, and you agreed with his thesis.

            2. “…over half the country believes that he’s president only due to voter fraud.”

              I have not seen any polls or surveys that suggest that. This is more common:

              “Confidence that the 2020 election was free and fair hits a high point: 65 percent of voters say the election was free and fair, including 92 percent of Democrats and 32 percent of Republicans.”


              (Jan 27, 2021)

  2. If it’s a TRO rather than a preliminary injunction, why would higher courts decline to follow the usual rule that TROs are not appealable, and keep themselves out of trouble in the process? Unless it’s a preliminary injunction disguised as a TRO. Sneaky little things. Never trust a TLA.

  3. “Texas has asserted that the federal government’s enforcement of immigration law was unlawful. ”

    Maybe the federal government’s failure to enforce?

  4. Anyway, ‘enjoining a moratorium’; isn’t that awfully like a writ of mandamus, in that it orders an action, the one Biden ordered a moratorium on? Rather than forbidding an action, as injunctions normally would?

    1. Not exactly, depends on how you look at it.

      The moratorium is an order from the President, ordering lower level federal employees to stop doing something they are already doing.

      The court enjoined the President from telling the Border Patrol and INS to stop doing something they are already doing, so BP and INS can keep doing what they were already doing.

    2. Did Biden just say “Covid is so bad the agents should stay away from immigrants and let them flow in”?

      Like what, the agents might catch disease so just stand back? Wth is his covid reasoning for safety?

  5. I wondered this with all the Trump litigation: Shouldn’t states skip the preliminaries and go straight to the U. S. Supreme Court? I know they shouldn’t, because the Supreme Court doesn’t take the stuff about its original jurisdiction quite literally. So I guess I’m saying why can’t the Supreme Court get its act together and insist on having original jurisdiction on these lawsuits by states?

    1. Sloth and cowardice

  6. Good, DACA decision should be cited constantly until it is overturned by its own creator.

  7. It’s only pyrrhic if you view everything as transactional like Josh often does. From a moral standpoint, not permitting the Trump admin to deport people brought here as children was correct and worth it.

    Cue internet tough guys claiming they would totally be willing to force someone onto a plane at gunpoint to a country where they don’t know the language or have any connections because they left when they were 3.

    1. Many of those “children” came here when they were 15. They had moral agency when they came, and should not be held blameless. In any case, it’s not about moral blame in the first place, but about whether America should extend an act of charity to these people. That should be assessed on a case by case basis.

    2. Bullshyte they don’t know the language — they don’t know *ours*.

      1. Speaking from a position of ignorance as usual

    3. From that moral standpoint, we shouldn’t put parents in prison for crimes if the commit them while also having young kids.

      It’s unworkable. If we didn’t deport the kids, then all anybody worldwide needs to know, is that if they have a kid, they get in scot-free.

  8. Yeah, I mean Regents was a ridiculous case. So is this. They didn’t consider the harm it would do to border enforcement? Nah, of course they considered it … they just didn’t care.

    It’s impossible to design a policy like this that considers those concerns. Its impossible to design a anti-immigrant policy that accounts for the immigrants welfare, because that is not the point of the policy!

    Its ridiculous that it seems the only policy that can happen is something that literally harms nobody. Which is not how policy works … everything has positives and negatives.

  9. “Indeed, despite such unique circumstances, DHS did not state or explain why 100 days specifically is needed to accomplish these goals”

    I swear this is the atupidest line … what do you want a timeline? You have to pick a number! If Biden just said we will take a wait and see approach that would be struck down as too vague! Now this is being struck down as too specific!

    1. Applying Roberts’ Regents rule, there has to be some justification for whatever number he picks, and the justification has to include consideration of alternatives.

    2. Yes, what mulch says. The point of stopping all deportations was to give the Administration time to formulate a policy to replace what was in place.
      Or is it all for show to appease his base, and stick his thumb in President Trumps eye? A vindictive temper tantrum

  10. I admit a great deal of confusion as to how Trump could be routinely smacked down by courts for failure to follow process on his executive orders meanwhile Biden issues a bucket of orders in his first week.

    That said, I think it’s amusing to believe you can order a government employee to *do* something they don’t want to do.

    1. “I think it’s amusing to believe you can order a government employee to *do* something they don’t want to do.”

      You mean, their job?

  11. There is no limit to how many 80 IQ mestizos leftists think belong in America, because they know they’re free votes, no matter how economically and culturally destructive they are to America.

    1. You know, I used to think it was about the votes. I’m not so sure. Rather, I’m coming around to the idea that the huge alien population is kind of like a slave labor force. They pay taxes but won’t be around to collect most benefits. Both parties want them for the cheap labor and to keep the system afloat.

      1. Yeah, except that it’s mathematically unworkable. The cost to society of their health care, education and other transfer payments are astronomical. It only benefits the capital class, who gets the benefits of that labor while society shoulders the cost.

        1. That is the counter argument, and a good one, that the illegal aliens are a net drain. However, like you say, it’s the capital class that gets the benefit while the rest of us are stuck with the bill. But how is that any different than anything else in America? Therefore, it’s also why the flood of illegals continues.

          1. And also why the Federal Reserve continues to print trillions for the banksters.

    2. Enforcement of border and immigration laws makes sense to me, but the trashy “80 IQ mestizos” comment makes any alternative view seem more persuasive in comparison. One can recognize the plight and grit of humans attempting migration while separating foreign economic drivers and political issues from considerations of sovereignty and citizenship rights.

      1. I can recognize the plight of people who are genetically less intelligent than the European-American population, while also thinking that they don’t belong here to live at our expense.

        1. Reading this subthread is a little like observing my dog watching TV.

          1. So, then, what don’t you understand? Or rather, is it that you don’t agree with someone so much that rather than make a rational argument, you’re comparing people to animals.

        2. Darwinism cannot be used as a foundational moral basis.

          1. In turns of immigration, sure it can. The moral basis for immigration control is protecting your own first.

  12. “Regents may have been a pyrrhic victory for progressives.”

    The impeachment of Trump likely will be the same thing. As will a lot of other things — there’s open talk of retroactively impeaching Obama for Benghazi, but all it would take is enough votes to impeach him for being born in Kenya.

    1. Just for fun we could impeach every Democratic President ever, and it wouldn’t be hard to come up with serious charges. FDR setting up concentration camps, for instance. Obama’s launching missiles into peaceful civilian areas to extrajudicially execute citizens. (And anyone else near them.)

      It would be a stupid thing to do, but no more stupid than the Democrats’ obsession with impeaching Trump.

  13. Whatever the standard for review of Executive Orders under one administration/President should be the same for any other administration/President. The only hope is for consistency.

    With regards to this particular cause of action and executive order, there is an underlying contract. There is a written contract between DHS and Texas stating that the US government would consult with Texas before making changes. The contract provided notice, remedies, and a right to enforce in federal court. The DISREGARD of the contract is different and bolsters Texas’s argument. Not only was the Executive Order without a proper predicate, it breached a contract.

    1. Not even this Judge relied on the contract.

  14. I expect that there will be a flood of lawsuits relating to Biden’s executive orders from AGs in conservative states.

    It should be interesting.

    1. I expect the Court to finally develop an interest in slapping down nation-wide injunctions, demonstrating that their earlier tolerance of them was just more TrumpLaw.

    2. Biden’s ban on oil and gas exploration permits is likely to be the next target.

      1. That ones a funny one.

        Biden: I will ban fracking (said x100 or more)

        Trump: Biden wants to ban fracking.

        Biden at one debate: That’s a lie, I won’t ban fracking.

        Biden’s handlers: Fracking ban the first week.

  15. Interesting that we don’t instead have a “pandemic border closure”.

    Nah, just let everybody in. Oh, but don’t you dare leave your house to eat dinner.

  16. I thought and still think that Regents was wrongly decided. If the Obama administration had discretion to institute DACA by executive order without APA regulatory rulemaking, notice and comment, etc., then the Trump Administration had discretion to un-institute it. And if the Obama Administration didn’t have that discretion, obviously an administration can un-institute an invalid program.

    I was inclined to think the broad discretion Congress gave the President (rightly or wrongly) most likely meant both had discretion.

    But Regents decided otherwise. And now the chickens are coming home to roost. Just as the older, more liberal Supreme Court interpreted the APA to hamstring Trump’s draconian tightening up on immigration, so Regents has empowered the new, more conservative Supreme Court to hamstring Biden’s liberalization of immigration.

    In my view, immigration, draconian or liberal, is the political branches’ business, and courts should stay out of it, unless the Executive branch is violating a clear Congressional command.

    Administrations are entitled to change policy on immigration, on political grounds, much as they are entitled to change foreign policy. I think the specific discretion that Congress gave the President on immigration Trump’s the APA’s vision of consistent regulatory policy changing only based on reasoned expert opinion after notice and comment.

    Congress can, of course, retains ultimate control over immigration and can curb the broad enforcement discretion it has delegated to the President. Maybe it should. But it hasn’t.

    1. Existing immigration laws ARE a clear Congressional command. It’s just that we’ve gotten numb to administrations picking and choosing which laws to enforce.

      1. Say it ain’t so!

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