The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.