The First National Injunction Against the Biden Administration

Texas v. United States all over again

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That did not take long. Today the U.S. District Court for the Southern District of Texas issued the first national injunction against the Biden administration. The order, to be precise a national TRO, prohibits the administration from enforcing and implementing its "100-Day Pause on Removals."

The rationales given for the nationwide scope are a mix of (1) circuit precedent (correct); (2) immigration needs uniformity (a bad argument but widespread, and previously invoked by both the 5th and 9th Circuits); (3) concern about interference with Congress's "integrated scheme of regulation" (the sort of concern that would make national injunctions a default remedy in challenges to federal policy); (4) a footnote invoking case law on the APA (a point supported by lower court precedent, though wrong as a reading of the APA, as John Harrison has shown); and (5) a concern that without a national injunction Texas would be affected by the movement of immigrants within the United States (a point that is a reminder of how close the connection is between overly aggressive remedies and overly aggressive theories of state standing–Massachusetts v. Mellon and Frothingham v. Mellon may stand or fall together).

The court is open to narrowing the injunction after further briefing.

There are two takeaways. The first is that the national injunction has now just jumped the partisan divide, and it will begin to be used as a tool of conservative litigants and red-state attorneys general to challenge the Biden administration. No surprise. But the national injunction remains every bit as much a malformation of the law of remedies and the law of equity–and a striking departure from the dispute-resolution vision of the federal judicial role in cases like Frothingham. (And, just as before, the national injunction is consistent with a quite different vision of the federal judicial role, one that emphasizes the declaration of law and takes literally the "striking down" of statutes, regulations, etc.)

The second takeaway is that the national injunction has become entrenched in circuit precedent in some circuits, which increases the need for the Supreme Court (or Congress) to act. Here's to hoping that 2021 is the year the Supreme Court inters the national injunction.

NEXT: High School Students Can Now Apply for the Ashbrook Academy on the Supreme Court and the Constitution

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  1. Agree on the need for the Supreme Court to address this issue, but, in the meantime, what’s good for the goose, ….

  2. Somehow this one hurts my head more than the Trump equivalent, because it’s not really an injunction that stops the government from doing something, but rather one that requires it to do something. (Specifically, kick people out of the country.)

    1. my side good, other side bad

      1. Education good, ignorance bad.

        Tolerance good, bigotry bad.

        Science good, dogma bad.

        Progress good, backwardness bad.

        Inclusiveness good, insularity bad.

        Reason good, superstitious bad.

        Freedom good, authoritarianism bad.

        What this says about those who favor education, tolerance, reason, freedom, modernity, inclusiveness, and science — and about those who prefer authoritarianism, ignorance, superstition, bigotry, backwardness, dogma, and insularity — seems plain.

      2. No. Ex parte equitable relief that is mandatory and upends the status quo with respect to third parties bad, briefed upon orders that maintain status quo until a full hearing on the merits good.

    2. The thing is, it doesn’t require that. The statute at issue, 8 U.S.C. 1231, explains what the remedy is if the government does not remove on the 91st day: supervised release of the detainee. So, shouldn’t a detainee still in detention on the 91st day (who would otherwise have been relegated to filing a Zadvydas claim) move to intervene on behalf of a class of similarly situated detainees and argue that the Gov’t’s failure to remove them or release them is a shadow violation of the TRO?

    3. Somehow this one hurts my head

      Given the force of atmospheric pressure pressing on your skull with nothing but vacuum inside to counter it I’m not surprised you’re experiencing cranial discomfort.

      it’s not really an injunction that stops the government from doing something, but rather one that requires it to do something

      Wrong. The injunction orders that “Defendants and all their respective officers, agents, servants, employees, attorneys,
      and other persons who are in active concert or participation with them are hereby ENJOINED and RESTRAINED from enforcing and implementing the policies described in the January 20 Memorandum in Section C entitled “Immediate 100-
      Day Pause on Removals.”7 (Dkt. No. 2-2 at 4–5).”

      “enforcing and implementing” policies constitutes “doing something”, and this order temporarily prevents them from taking the aforementioned actions.

      1. Nope. It’s the substantive positive, not the grammatical positive, that’s at issue, not that I would expect you to understand the difference. Putting someone on a plane is a positive act, regardless of whether the person doing so was told to do it, or was told to not not do it.

        1. It’s always funny when an idiot like you challenges someone else’s intelligence. The order enjoins the specified parties from implementing and enforcing a policy change. Those are actions…both grammatically and physically…whether you’re capable of grasping something that simple or not.

          1. Wuz, stop digging. You’re already up to your eyeballs in shit.

            1. Yes, wading into your nonsense is indeed entering a deep pool of shit.

              1. Wuz, if I could buy your opinions for what they’re worth, and then sell them for what you think they’re worth, I could pay off the national debt and still have enough left to retire.

    4. You mean it requires them to do their job, protect the border? The job that they are paid for?

  3. Biden basically repudiates his oath of office to “take Care that the Laws be faithfully executed” and unconstitutionally usurps congressional lawmaking. He did it in record time too.

    Leftists don’t care, of course, because they have no regard for the constitution or for anything else besides power and their progressive religion. They sometimes pretend they do, but where is their criticism of Biden then? Nowhere.

    Open borders advocates who pretend they aren’t unprincipled leftists also won’t be complaining about faithlessly ignoring laws.

    1. Trump admin didn’t really enforce environmental law or civil rights law. Or consumer protection law at CFPB. So I assume you had rants about that?

      1. Trump is no longer in office and nothing Trump did or didn’t do (nor made up stories about what Trump did or didn’t do) forced Biden to violate his oath of office in week one.

        1. Okay. So no sweeping rants about the principles of the right which sound a lot like psychological projection. Got it.

            1. Whataboutism is good if it’s actually relevant. It’s how you figure out whether someone is acting in good faith or has principles. If you start going on about something, particularly when it’s a broad statement, and someone points out all the times you didn’t care about something similar then it undercuts your point.

              Jeffrey Dahmer: I’m pro life.
              Others: What about all those people you killed?
              Jeffrey Dahmer: (links to Wikipedia page on whataboutism and doesn’t address the inconsistency).

              1. It may be relevant to assessing the other’s motivation or character, but it is not relevant to the issue or question being debated.

            2. These next few years will be much whataboutism, as the sides use the techniques used against them last go-’round.

              Joyously. It was wrong then. It it wrong now.

              Overreaching exec orders vs. national injunctions.

              Many such! Sad!

          1. Where are the specifics about which laws were not enforced by Trump then? Post them.

            Trump didn’t repudiate his oath of office on week one of his term.

              1. No President took any official actions before his term began.

                That’s the best you can do?

      2. Again with the whataboutism. Give it a rest.

        1. No. Whataboutism exposes inconsistencies. If you didn’t care about something similar previously, how am I supposed to take you seriously now?

        2. whataboutism is a mem developed largely by the left to avoid having to explain their inconsistencies and hypocrisy.

    2. So earlier I talked about not listening to bad faith right-wingers.

      This is an example of that.

      Not a legal argument, just partisan outrage. And outrage clearly inconsistent with what they endorsed in the previous Admin.

      A post empty of anything substantive except showing it’s poster to be an utter tool.

      1. Please post a concrete example of Trump repudiating his oath of office.

        When someone doesn’t buy your dumb partisan fairy tales, you call it “bad faith”.

  4. I don’t understand (yes, I could probably read the opinion, but I’m feeling lazy) this injunction. The court can’t order Biden to arrest and deport people.

    1. The court can’t order Biden to arrest and deport people.

      That might be at least one of the reasons that the court didn’t do any such thing.

      1. Unless you believe in the unitary executive, of course.

        1. Unless you believe in the unitary executive, of course.

          Yet another WHOOOOSH moment for you.

          1. Not bothering to engage, just insult.

            That’s how I know you have no good response.

            Gonna be a hard couple of years as you try and cover you lack of principles with increasingly desperate empty name-calling.

            1. as you try and cover you lack of principles

              ROFLMAO! You wouldn’t know a principle if it bit you on your pathologically lying ass.

              I’m sorry that you’re not bright enough to understand that “set of government agents X may not implement new policy Y, which would be a change to existing practice and a violation of federal law Z” is not the same as “Joe Biden is hereby ordered to arrest and deport people”.

          2. To make it clearer for you: If you believe in the unitary executive, how can the courts bind Biden taking executive action based on restrictions from outside his branch?

            1. Let me make it clearer for you:

              Biden’s executive action was to sign the EO. The court did not prevent him from doing so. What it has prevented…temporarily…is a federal agency violating federal law by implementing the policy dictated by said EO. Saying that the agency in question must continue to abide by said federal statute…as it was doing before Biden took office…is not an order for Biden to do anything. It is an order that prevents his EO from STOPPING that agency from continuing to do what it was already doing.

      2. Right but it is ordering them not to enforce a moratorium. So how are you supposed to enforce that? Enter show cause orders for every instance of non-removal and determine if the agents who didn’t do the removal acted under the policy or not?

        1. Unclear why a court would need to “enforce” anything in this circumstance. Presumably if CBP didn’t want to continue to perform its assigned function, there would be no need for a moratorium. So a return to the status quo by removing the moratorium allows them to carry on with what they were doing. And one would imagine that CBP has its own internal disciplinary systems to deal with individual employees who refuse to do their jobs.

    2. It’s a policy change that is being stopped by the injunction.

    3. “The court can’t order Biden to arrest and deport people.”

      Do you want to tell the court that, or shall I?

      1. Neither of us has to; that’s what appellate courts are for.

  5. Gosh, Southern District of Texas, who could have guessed that jurisdiction.

    I am now waiting for all of those great conservatives who were furious at the court in the Flynn case for daring to question the prosecutorial discretion of the government, which they said was absolute and not to be questioned. Surely they will leap to condemn this ruling as interfering with an unquestionable right of the executive branch. They will condemn this ruling in the strongest possible terms.

    Oh wait. That would require consistency and intellectual honesty on the part of those individuals. Their principles are only part time, when they need to change them they just do so, no questions asked or allowed.

    1. You do understand the difference between deciding to prosecute or not prosecute one defendant, and making a blanket decision that an Act of Congress will not be enforced anywhere in the United States against anyone, right? The former is prosecutorial discretion. The latter is nullification of law by the Executive branch.

      1. Okay, so you are saying it has to be done on a case by case basis. Okay, that should not be too hard.

        But getting back to reality, the situation in this situation is that the situation is extremely complex, and the government is apparently not saying it will not prosecute, but that it needs time to work through the mess of immigration they were left. In the meantime they are saying they will do no harm until they figure it out. People may not agree with this approach, but it is not unreasonable.

        Elections have consequences, loser do not control the agenda as Mr. McConnell has just learned.

        1. Enforcing the law is harm? To who? The people who broke the law? If that’s the case then no laws should be enforced during this complex situation. Every law breaker could claim harm when laws are enforced against them.

        2. “It needs time to work through the mess”

          Fair enough. Just make sure they do this anyway regardless of injunctions to avoid the embarrassment of popping out the end with no such analysis, as Trump did regarding immigration bans and 90 or 180 days.

          Eh, probably should not warn about that, lest they actually do it.

    2. Consistency is a two way street. Libs applauded Resistance! judges for 4 years, now this is bad.

      Neither side wants its ox to be gored.

    3. Oh wait. That would require consistency and intellectual honesty

      With your comment making clear that you are not familiar with either of those.

  6. This one seems particularly problematic, in that:

    1. You have a secret agreement that is likely uneforceable; and

    2. entered into by an official who likely did have the authority to enter into it; and

    3. for the express purpose of deliberately sabotaging the immigration policy of the next administration in a collusive agreement with a state (that is likely, again, unenforceable); and

    4. the injunction is not arguably not prohibitive (preventing the government from continuing to do something) but mandatory (forcing the government to do something it does not want to do); and

    5. the equities of the situation would result in people being forced out, whereas, at most, a narrow order to preserve a status quo between the two extremes (a pause allowed, but neither removal nor release until further briefing) would be favored.

    Now, all of that said, the judge made it clear that he was not relying on the Agreement, but on the APA. The Court did demand expedited briefing and/or expedited discovery. I have seen much worse, but I do not agree with this.

    1. I’m not bothered by a short-term injunction, even nationwide, because I do think it raises enough legal questions as matters of first impression that a district court looking at it could very sensibly just answer ¯\_(ツ)_/¯ initially. If it takes them a couple weeks to sort it out, so be it.

      On a deeper dive, all of the issues you raise are exactly the reasons I don’t see this surviving. Imagine a Hawley administration being sued by Massachusetts in 2025 because Massachusetts signed an unpublicized deal with the acting undersecretary of the interior two weeks before Biden’s term ended agreeing that Massachusetts would be irreparably harmed if the government stopped enforcing groundwater protections against farmers based on the Biden administration’s reading of the Waters of the United States rules. There can always be challenges to changes in policy, but the idea that a liberal state can conspire with a liberal administration to craft a side deal that can then be enforced against a subsequent conservative administration is pretty out there.

      1. I’m not bothered by a short-term injunction, even nationwide, because I do think it raises enough legal questions as matters of first impression that a district court looking at it could very sensibly just answer ¯\_(ツ)_/¯ initially. If it takes them a couple weeks to sort it out, so be it.

        Yeah, but the balance of equities favors the administration, not Texas. If the injunction lasts a few weeks, people get deported who otherwise might not. If policy is allowed to stand for a couple of weeks… it costs Texas a few dollars.

  7. Live by Resistance!, die by Counter-resistance!

    1. American progress will continue to sift this, and not in the manner conservatives prefer. At most, our vestigial bigots, White nationalists, Republicans, White supremacists, conservatives, and xenophobes will delay that progress a bit.

      Winning a culture war has consequences, as does being on the wrong side of history.

      So carry on, clingers . . . but only so far and so long as better Americans — who will shape our national progress against your wishes and efforts — permit.

      1. Fuck off, authoritarian fascist. I’ll do what I want.

        1. No, clinger, you will not. You will comply with the preferences of better Americans. That is the lot of the bigots, clingers, Republicans, birthers, conservatives, Trumpers, and other obsolete, authoritarian, right-wing culture war casualties.

          But you get to whine about it as much as you like.

          1. Fascist asshole. I’m not a “clinger”. I don’t even know what the fuck I’m supposed to be clinging to.

            But I’m a free American citizen and I’ll do what I want and think what I want. You can shove your authoritarian un-American bullshit right up your ass.

  8. So much for the “Rule of Law”.

    We now have:

    1) An executive who legislates with his pen and phone through EOs,

    2) A legislature that forces non-budget laws through via “budget reconciliation”, and

    3) A court system that decides it does/does not like “laws” and EOs, effectively legislating from the bench.

    Somehow I don’t think this is what the Founders intended.

    1. Do you think the founders intended for the minority in the Senate to be able to block legislation proposed by the President, passed in the House, and supported by the (effective) Senate majority?

      Somehow I don’t think this is what the Founders intended.

      1. Well, aside from all those Constitutional protections and such that were designed explicitly to allow for a minority in the Senate to block certain legislation…

        1. Which constitutional protection is that? There is no such constitutional protection for the senate minority. The senate has just used their rule making authority to make such protections. They don’t have to have those at all.

          1. I suppose you’ve never checked Article V…

            1. Okay so if there is certain legislation, like constitutional amendments and treaties that a minority can block, that must mean they never intended a minority to block any
              other type of legislation, right?

              1. 1. Congrads for agreeing with me. There is certain legislation that a minority in the Senate can block.

                2. In regards to what the founders intended, or didn’t intend, there are multiple interpretations. I’ll note the fillibuster rule change occurred in 1806 in the US Senate, at the proposal of Aaron Burr (Whom Hamilton tells me is a “founder”). And there are many, many things the founder didn’t necessarily intend, which nonetheless occurred. Regardless, the fillibuster serves a purpose.

                1. Yes. A bad purpose. Just because it serves a purpose doesn’t mean it is a good one. Giving an already countermajoritarian institution which is part of a government where all other parts are also highly countermajoritarian, an even greater ability to impose minority rule is a bad purpose.

                  1. It’s not “minority rule” in any respect, because the “minority” can’t actually DO anything. What it is is a minority veto.

                    There is much to be said for needing more than just 50% + 1 to get certain actions done. Sometimes actual broad consensus is better.

                    1. Uh it’s obviously minority compared to the country as a whole.

                  2. How is the Senate, “old men” for the purpose of slowing change over the more hot-headed house, not fulfilling its role when it sets up self rules with fillibuster?

                    Standing there like Emperor Palpatine, blustering “Unlimited power!!!” because you have a slim simple majority is the goal of dictators, not those concerned with opposing it.

                  3. The senate is not countermajoritarian. It’s just non-majoritarian.

      2. “Somehow I don’t think this is what the Founders intended.”

        I know! Why would anybody think the Founders wanted each house of Congress to make its own rules?

        1. Just because they let the houses make their own rules, doesn’t mean they intended any particular type of rule to be made, or would be happy with the rules chosen.

          1. Sure. But they clearly intended to allow the houses to make rules that they might not by happy with.

      3. Hell Bernard, it’s everywhere. Do you think the founders intended for the executive to be able to enter into treaties without the concurrence of 2/3 of the Senate?

        We’re are up with it.

        1. I mean, Washington did exactly that with England…

      4. Actually, bernard, I think that this is exactly what the founders intended, t put a great deal of molasses into the machinery of the federal government.

        1. Not this molasses, and not this much after their experience with the Articles.

    2. You know, maybe what the founders intended is the problem. We have a solid national majority that largely supports progressive policies but can’t get them because the founders in their wisdom decided to give political minorities the practical ability to obstruct, and thanks to anti-democratic institutions and gerrymandering most incumbents are insulated from any real accountability. With the results we have.

      The Constitution isn’t the solution; it’s the problem.

      1. “We have a solid national majority that largely supports progressive policies”

        Which is why the Democrats got completely whipped down ballot.

        You’re deluding yourself if you believe what you typed. The Constitution is protecting us from going down the road to a Progressive/Socialist Utopia, just like it’s protecting us from becoming a Christian Theocracy. It’s acting like a anti-extremism device, just as designed. Most of us out here are relieved that it is, because you progressives are every bit as scary as the hardcore right.

        Keep your fucking paws off of my Bill of Rights, please.

        1. Bevis,
          In your opinion; in our national elections each 2 years, do Rs (combined) or Ds (combined) in the House get more total votes? Do all D senatorial candidates (combined) or all R candidates get more total votes? Would you agree that the total number of people voting for Ds (compared to Rs) is at least a reasonable proxy for what sorts of policies people want? When there are national polls that show support for policy X, do you believe or disbelieve those polls? Why or why not?

          1. Not necessarily santamonica. People in specific areas are limited to specific choices which may not truly reflect their actual philosophy.

            The fact that most of the high population density areas tend to lean left influences this as well.

            And I’m not saying the country is conservative leaning either. But the premise that the country loves progressive policies is ridiculous in light of an election in which the country just rejected progressive policies. Hell, the Democrats alone rejected progressive policies – that’s how we got Biden instead of Warren or Sanders.

            1. If you look at the total vote in the House, over the past several years, the parties keep switching majorities. In the past four elections, Ds won 2, Rs won two; in the past 6, they split 3 and 3; and in the last 10, they split 5 and 5. Ds lost significant state level legislative seats under both Obama and Clinton, and Rs still have a majority of governorships and state legislative chambers. Ds overestimate their majorities because of the presidential votes, which could just as well be a reflection of the poor candidates Rs run. (Running Romney, for example, who can’t campaign against Obamacare, which was then extremely unpopular, because of his Massachusetts plan.) As for opinion polls, there is evidence, particularly at the presidential level, that they are no longer representative of the population as a whole as conservatives are no longer responding. Moreover, poll results have significant variations depending on the language of the question and the questions surrounding the question. And they do not measure the intensity with which an opinion is held or the importance of the issue.

          2. If you look at the total vote in the House, over the past several years, the parties keep switching majorities. In the past four elections, Ds won 2, Rs won two; in the past 6, they split 3 and 3; and in the last 10, they split 5 and 5. Ds lost significant state level legislative seats under both Obama and Clinton, and Rs still have a majority of governorships and state legislative chambers. Ds overestimate their majorities because of the presidential votes, which could just as well be a reflection of the poor candidates Rs run. (Running Romney, for example, who can’t campaign against Obamacare, which was then extremely unpopular, because of his Massachusetts plan.) As for opinion polls, there is evidence, particularly at the presidential level, that they are no longer representative of the population as a whole. Moreover, poll results have significant variations depending on the language of the question and the questions surrounding the question. And they do not measure the intensity with which an opinion is held or the importance of the issue.

  9. It’s hard to believe that at one time, I actually believed in government.

    Now it’s just like the Easter Bunny, Tooth Fairy, and Santa Claus.

    1. Well, if you asked for a jack-in-the-box, Santa did not leave you a Charley-in-the-box under the tree.

      1. “My train has square wheels!” *

        * Because Senator My State Specializes in Square Wheels demanded it in the contract.

  10. I don’t understand how this can be enforced. There is no way that a court or Texas can prevent ICE or CBP from slowing down deportations so much that they are effectively on hold, even without formal policy.

    1. There is no way that a court or Texas can prevent ICE or CBP from slowing down deportations so much that they are effectively on hold, even without formal policy.

      That would be rather difficult to do without violating 8 U.S.C. § 1231(a)(1)(A), especially with regard to those detainees who already have removal orders pending.

      1. The statute contemplates an alien not leaving, or not being removed, within the removal period.

        1. The statute contemplates an alien not leaving, or not being removed, within the removal period.

          Yes it does. What it does not contemplate is non-removal within the 90-day limit just because someone feels like dragging it out.

    2. ICE official implements Biden policy despite court order, Texas tells the judge, judge sets a hearing and asks at the hearing “was this action taken on [whatever day] in accordance with the policy, despite the injunction”. Then ICE official can either lie to the judge’s face in the court room or tell the truth and be held in contempt and jailed by the judge.

      How do you think court orders are usually enforced?

      ICE official could also skip the hearing and then the judge would send marshals to bring him to the next one.

      Dumb partisan storytelling and denial doesn’t make court orders disappear.

      1. How would Texas do this? They would have to have an objective basis for demonstrating that a particular alien MUST be deported immediately in the next 14 days, despite the vast complexity of immigration laws and the myriad of legitimate reasons that an agent might have to not deport a particular individual at a particular time.

        1. No they wouldn’t. Texas just makes the claim that the order was ignored. The judge can then ask what happened.

          Are you going to lie to the judge in his court room?

          1. Ask who what happened? About what? You can’t just “claim” things in contempt proceedings and get hearings. You need to have evidence that an order was violated. Clear and convincing for civil contempt sanctions and BARD for a claim that there is a willful violation. And if they can’t produce evidence that particular aliens absolutely had to be removed, but weren’t because of the policy, then there can’t be any contempt.

            1. One ICE officer says so.

              1. Says so about what?

                1. They were going to deport the guy that day, but then someone said no because of the Biden EO. And the guy wasn’t deported, despite the court’s order.

                  You really think every single person in ICE will conspire together to violate the court order? And they’ll all agree to keep it quiet?

                  I hope you’re not actually a lawyer.

                  1. Okay. So let’s assume that Texas finds an alien that it thinks should be removed to support its show cause motion. And then finds an agent willing to testify that other agents ordered the removal to be delayed because of the EO. But then the other agents testify about all the reasons apparent from the record that the alien wasn’t removed. I mean theoretically the Court could make the credibility determination that they’re all lying, and the one is telling the truth, but that wouldn’t be a very strong record to support a contempt sanction unless Texas had evidence that undermined the other agents credibility.

                    1. But all the other agents are lying to the court as per your strategy. Why would they do that?

                      They’re not dumb partisans playing dumb partisan games.

                    2. I DON’T HAVE A STRATEGY. JFC.

                    3. In theory there’s some kind of written record stating that the illegal alien was scheduled to be deported, and why. In your scenario are the agents trying to do the President’s bidding contrary to the injunction going to falsify that record, or refuse to let the judge see it?

                      I’m not saying that a comprehensive enough conspiracy couldn’t frustrate the judge’s attempts to enforce his order, but they’d be assuming significant legal risk.

                      Then you have to deal with the fact that people don’t take jobs with ICE in the first place because they’re determined to prevent immigration laws from being enforced. So, what’s the motive for the conspiracy?

        2. They would have to have an objective basis for demonstrating that a particular alien MUST be deported immediately in the next 14 days

          No problem. Was a deportation order issued for that particular alien? If so, will that order be at least 90 days old within the next 14 days? If so, there’s your objective basis.

          1. Is that order appealable? Is it subject to logistics or other considerations? Can they find the person? Did they not find them because of the EO or because they’ve disappeared?

            1. Those are issues that have nothing to do with your claim that there is “no objective basis for demonstrating that a particular alien MUST be deported immediately in the next 14 days”. All of that is addressed by 8 U.S. Code § 1231.

      2. For example. Could the alien be the witness or victim of a crime? What if they’re covered by DACA? Or are disputing that their visa expired? Claiming asylum? Claiming they are a citizen? In the middle of chemotherapy and unable to leave Maybe there is no country that will
        accept them at the moment. Maybe there are other logistical reasons? And Texas is going to prove that in court? Okay.

        1. Texas doesn’t have to prove anything. Judge asks you whether you implemented the policy despite his order. Do you directly lie to him?

          What keeps the judge from asking that? Dumb partisan storytelling?

          1. I assume you’re not a lawyer. Because contempt actually has to be proven on the record. Okay? If Texas is making a show cause motion for civil contempt sanctions it must prove that by clear and convincing evidence. The court can’t just enter contempt sanctions because a party asks them to. If Texas or the judge thinks an agent is lying at the hearing there has to be an objective basis on the record for that determination. And if it’s a criminal contempt sanction, the evidence of contempt has to be beyond a reasonable doubt.

            1. Your strategy is to ignore the court order and try to hide it from the judge and from Texas when every ICE officer can clearly see you doing it.

              You should post your name so people can decide whether they want you on their legal team.

              1. No. I don’t have a “strategy.” I’m saying Texas is going to have a hell of a time proving their case on a show cause motion.

                Immigration law is really complex and the case by case practical complexities are even more complex. That makes this type of TRO practically unenforceable order because there will be many possible and supportable reasons not to remove someone in any particular case on this particular time frame.

                Eventually if some kind of permanent injunction is entered against the admin, that might be theoretically be enforceable once standards are developed. But we’ve seen with injunctions against prison overcrowding and school desegregation, it’s a lot easier said than done.

                And I’m not posting my name when there are other commenters who have said they want to see people like me killed.

                1. What will actually happen: ICE officials will obey the court’s order. All their bosses will tell them to obey the court’s order.

                  As soon as one says different, he risks the judge finding out and being held in contempt. Why would any of them do that? They are ICE officers and officials, not crazed Dem partisan schemers. And if they are crazed schemers, the other ICE agents will be happy to be blow the whistle on them.

                  1. Yeah when they obey the court order guess what’s going to happen? They’re still going to not be deporting lots and lots of people for a wide variety of legitimate reasons. The nation won’t be cleared of every potentially removable alien in 14 days. And Texas is going to have to figure out which ones are legitimate and which ones aren’t and they’re going to have a very difficult time doing that on a case by case basis.

                    1. Cool. Order obeyed then. Glad that could be cleared up.

                    2. Not cleared up because you still don’t get it and think I have a plan or strategy to implement a left-wing conspiracy to stop your dreams of a nice orderly ethnic cleansing.

                    3. you still don’t get it

                      Funny choice of words for someone who has been literally littering these comments with the bizarre idea that an activity that required a moratorium to make the relevant agency stop would somehow require court supervision to get them to restart.

                    4. Life,

                      Crowding California prisons and keeping schools segregated schools was a routine activity as well. And courts ordered them to move people. It was extremely difficult. Not moving people is much easier.

                    5. LTG, the issue I would take is the opposite side – plenty of ICE employees are into deportation, and will continue to deport using this court case as cover.

                      The number will go down, but this does make the moratorium full of holes for at least a couple of weeks.

                    6. Crowding California prisons and keeping schools segregated schools was a routine activity as well. And courts ordered them to move people. It was extremely difficult. Not moving people is much easier.

                      What a strange choice of analogy. There, the status quo was not moving people, and the court order was counter to that status quo. Of course the status quo was “easier” (due in no small part to being the preferred MO of the relevant agencies).

                      Here, the court is ordering the relevant agencies to return to the status quo briefly disrupted by the moratorium. That’s not a tough sell at all, for all the reasons I already explained.

                    7. plenty of ICE employees are into deportation, and will continue to deport using this court case as cover

                      Ah, so now continuing to do your job per a properly-ordered national injunction is “using a court case as cover.”

                      I’ll add that one to my running list of circa-2021 Newspeak.

      3. Set aside immigration for a moment. Suppose Texas cops find out that there is someone violating a federal law. They tell the FBI. The FBI ignores them. Can Texas hail the FBI into court, and get a district court judge to issue an order that the FBI arrest the person? No.

        The district court can enter an order that enjoining an EO, but they can’t force the federal government to actually deport people.

  11. What happens if a court in, say, California issues a nationwide injuction ordering the opposite? Is it merely a matter of judicial comity that an “equal” court would not do this?

    (I recall the same questions being asked while Trump was president and judges were blocking his policy goals with nationwide injunctions…but I don’t remember seeing an actual answer to these above questions.)

    1. What is the California court going to issue an injunction on exactly? Unless it’s going to be a national injunction on a national injunction.

      1. Unless it’s going to be a national injunction on a national injunction.

        And why stop there? “Well, I’M gonna enjoin your injunction of his injunction of her injunction. So THERE.”

      2. Why couldn’t some dude in California who’s being deported ask a court to enjoin CBP from deporting him, based on the fact that the President has asked them not to?

        1. How would that be a legal argument? Biden’s preferences don’t empower judges to ignore laws.

          1. The legal argument is that the moratorium is a legit use of Biden’s authority.

            1. And Biden might argue that. But Biden is not a party to the case in your hypothetical.

              Your hypothetical has a guy asking a judge to stay his deportation. The judge can find a legal reason. Biden’s preference isn’t among the legal reasons (and Biden didn’t assert it in your hypothetical deportation case).

              There’s another possible way this might work out doesn’t change laws and doesn’t give a judge the opportunity to ignore laws.

              1. Sigh. Biden is the chief executive. The guy being deported has standing to claim that his deportation is not authorized.

                1. Executive branch and judicial branch fight over the meaning of laws. Congress does what it does best: hides, because god forbid they be held accountable for the meaning of their laws.

                2. Not authorized by what? Judge looks at case, judge reads the law, law says his deportation is authorized. Biden can’t un-authorize it without directly violating the court order.

                3. Sigh. Biden is the chief executive.

                  In charge of faithfully executing the laws, last I checked. Now any random litigant has standing to challenge the application of a law b/c the President said he didn’t think it should be enforced?

      3. With all the pointless digressions; I’m glad Armchair focused on my actual question. Yes, 5th Circuit lower court judge says, “X, and X nationwide.” 9th Circuit judge later says, “Not X, and not X nationwide.” “Or, maybe, “Not X in California.” I don’t know of any legal reason why this second judge can’t make that order. But maybe that’s the informal rule, due to my guess of comity or some other reason.

        I’m hoping that someone with actual knowledge can give us the answer. Assuming there is an answer. 🙂

  12. If the Biden administration said nothing, but just continued to act as if the injunction did not exist, how could anyone tell?

    1. Every time I think you’ve already made the most clueless comment you possibly could you come along and one-up yourself.

      1. I mean he’s got a point. How is anyone supposed to tell if the TRO is enforced? Figure out which specific aliens out of 1000s were ready to be removed in the next two weeks and then find out the reasons why the agents didn’t remove them and figure out if it was traceable to ignoring the TRO?

        1. The judge asks you whether you violated his order. Do you lie to his face in his court room?

          1. Why are you assuming it’s a lie?

            Judge: why didn’t you remove this alien?
            Agent: well they were covered by DACA
            Judge: what about this one?
            Agent: well they were applying for a U visa because they were a crime victim
            Judge: what about this one?
            Agent: well we can’t find a country that will take them yet
            Judge: and this one?
            Agent: well he’s undergoing chemotherapy right now and subject to the medical deferred action policy

            Etc

            1. Because if it isn’t a lie, then the court order isn’t being violated. But that’s your plan: to violate the order and try to get away with it.

              1. Dude. I’m not in the Biden admin. I don’t have a plan. I’m just some guy who knows mandatory Court orders are difficult to enforce, which is why I’m scratching my head on this particular one. State courts can barely enforce civil restraining orders with “clear” mandates like: don’t go within 500 feet of the plaintiff. So I just don’t think a court is going to successfully mandate that immigration law be enforced in a particular way on a TRO.

                1. Everyone in ICE will comply with the order. That’s how. Because it’s an order for them to do their jobs normally.

                  1. And doing their jobs normally means not deporting anyone and everyone who might be possibly removable, which will make it very difficult to prove that anyone is violating the order when someone isn’t deported.

                    1. The court order doesn’t require them to deport everyone who is eligible for deportation. It requires them to not stop deporting every single alien eligible for deportation. In other words, the court order requires them to operate as they normally would. Some will get deported. Some won’t. That doesn’t violate the order.

                    2. Harvey,

                      Right. Exactly. Which makes this order extremely difficult to enforce because each case is unique and Texas would have to come to court and explain how a particular individual wasn’t deported because of the order and not some other explanation

                2. LTG have you not noticed yet that he’s either not reading a single response of yours, or that he’s incapable of understanding what you’re saying?

                  1. Have you noticed that the premise of ICE deciding to ignore a court order for them to do their jobs normally is an extremely dumb premise?

                    Why should I directly respond to every fantasy element of a fantasy scenario where enforcement actions to enforce this order are even something that actually needs to happen?

                    1. Suddenly Ben has a very strong assumption of government agencies’ integrity and lawful operations.

                      Do you apply that to the organizations involved in the 2020 election, chief?

                    2. We already know the people who were supposed to maintain election integrity failed at it. If they had followed their procedures they could prove their numbers were correct instead of saying these are the numbers and we got rid of any evidence you could use to dispute them.

                      Also, it doesn’t take an assumption of spotless integrity to guess ICE agents won’t conspire with ICE-agent-haters against a court order.

        2. I mean he’s got a point.

          Said no one about Lathrop’s ramblings ever…until you came along.

          How is anyone supposed to tell if the TRO is enforced? Figure out which specific aliens out of 1000s were ready to be removed in the next two weeks

          As already pointed out, the removals are triggered by the issuance of deportation orders. Those orders are dated, and are required to be carried out within 90 days of their issuance. You’re really puzzled by how that sort of thing might be followed up on?

          1. Wuz, of course I’m puzzled. I count 6 passive constructions in your last paragraph. No doubt you have studied up on every twist and turn in the immigration bureaucracy. Not me. When someone who knows much more than I do offers assertions, but leaves all the subjects out, I get confused. Help me out:

            1. Who actually deports people?

            2. Who do the deporters report to?

            3. What administrative step is the key step which empowers deporters to do a deportation?

            4. What kind of official does the empowering thing which enables the deportation?

            5. What is an immigration judge?

            6. Who do immigration judges report to?

            7. What is an immigration judges’ union?

            8. Have I mentioned anyone yet who reports to an Article III Court?

            9. Does the president of the United States report to an Article III Court?

            10. Except for the stench it emits, WTF does a lame duck agreement between the previous administration and the State of Texas have to do with any of this?

            I plan to rely on your insight, Wuz, so please explain carefully.

            1. I’m not surprised by your being puzzled, given that you actually believe that the data logged by cellular service companies regarding devices that interact with their equipment somehow belongs to you.

            2. 10. Except for the stench it emits, WTF does a lame duck agreement between the previous administration and the State of Texas have to do with any of this?

              Nothing, which you would have already known if you’d bothered to actually read the order before you started babbling on about it.

          2. “You’re really puzzled by how that sort of thing might be followed up on?”

            Don’t leave us hanging, tell us what you had in mind.

            1. Don’t leave us hanging, tell us what you had in mind.

              Are you under the impression that the legal orders are not obtainable? Or that the disposition of the individuals who are the subjects of those orders is not discoverable?

              1. No. I’m asking you what your mind was telling you about how the obtainable orders for discoverable deportees will be enforced. If ICE doesn’t deport Juan Doe, do you think Texas has standing to order that specific deportation? If Texas doesn’t, do you think the person being deported is going to challenge the delay? What’s your understanding of how immigration judges interact with ICE re: the 90 day removal period? Who, specifically, do you think is going to show up in court to demand that Juan Doe be deported? These are not rhetorical questions.

                1. Should be standing to sue to have a court order that specific deportation.

  13. A bit of a performative TRO, I don’t see how you can identify particular immigrants to deport that are eligible for removal within 14 days and force those to be deported. Also what happens if the PI is denied and an immigrant who shouldn’t have been removed is deported. Aren’t they going to have to get them back somehow?

    Kind of flouts a basic principle of equitable relief: don’t order things that are difficult to undo later.

    1. This has been explained multiple times. There are actually written deportation orders with dates on them. So identifying them is fairly easy.

      1. Brett, those dates you mention. Are they lawfully required, or administratively decided. If it isn’t the former, can administrators change the dates? Are immigration judges judicial officials, or administrators?

        1. Those questions are answered in the order as well as the federal statutes it cites. Perhaps you should have tried reading it/them before adopting and arguing positions on the matter.

  14. Mark Joseph Steyn effectively notes the pointlessness of this order and also the judge’s ignorance of how the deportation process works.

    https://slate.com/news-and-politics/2021/01/trump-judge-injunction-biden-deportation-pause.html

    1. That would be “Mark Joseph Stern” (career Slate journalist, straight out of law school… hmmm). I confess you made me click through to see if the world had turned weird enough that Slate had agreed to publish something from Mark Steyn.

      Moving to the merits of the article, it seems to be little more than some histrionics starting with whattaboutism (now suddenly back in vogue) and then moving to the Very Clever Theory LTG has been bandying about here that an injunction can’t force deportations (it never claimed to — so what?).

  15. Interesting thing is we are becoming a democracy that no longer relies on a legislature. The executive makes laws through regulations and executive actions. The courts upholds or overturns. Congress seems to do nothing. Which begs the question why are we paying them?

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