Donald Trump may be gone, but his terrible judges live on. They’ve burrowed into the federal courts at every level, and they will be thwarting progressive efforts. Just six days into the new administration, one of these judges handed a victory to Texas and its hardline anti-immigration efforts.
On day one of his administration, President Joe Biden signed a memorandum pausing certain deportations for 100 days. The order’s goal was to freeze deportations while the new administration reviews the Department of Homeland Security’s immigration policies.
Now, it’s fair to say that this order doesn’t go remotely far enough. It still allows for a lot of people to be deported and gives a lot of discretion to Immigration and Customs Enforcement. If the director of ICE says you’re a terrorist or you pose a danger to the United States? Deported. If you arrived after November 1, 2020? Deported. If the director of ICE talks to ICE’s general counsel and really wants you to be deported? Deported.
For Texas, this was apparently a bridge too far, and they sued right away, complaining that it would cost too much money not to deport people. Texas Gov. Greg Abbott and state Attorney General Ken Paxton, who is literally an indicted criminal, have basically vowed to sue the Biden administration over everything, which is what they did to Obama too.
Roe has collapsed and Texas is in chaos.
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For this case, Abbott and Paxton landed a Trump judicial appointee, Judge Drew Tipton, who was happy to give them what they wanted and blocked Biden’s executive order for 14 days. (Tipton said a few days later he planned to extend the restraining order for an additional 14 days.)
Tipton, who ascended to the federal district court bench in Texas in June 2020, is a standard-issue Trump judge. He’s a Federalist Society member, of course. He donated thousands of dollars to Texas GOP Sens. Ted Cruz and John Cornyn. He isn’t as inexperienced as many of Trump’s judicial picks, but that’s a low bar.
Tipton wasn’t shy about doing Abbott and Paxton’s bidding here, and he did so by turning some law on its head. What Texas asked for at this stage of the case was a temporary restraining order—an emergency request to stop Biden’s order from taking effect. It’s an extraordinary remedy, and one that courts are supposed to deploy quite sparingly.
Additionally, there are specific rules that apply when determining whether to grant this order. Some factors revolve around “weighing of the harms.” Put another way, the court has to assess whether Texas will suffer “irreparable harm” if it doesn’t get its way here. The court also has to assess whether granting the temporary restraining order hurts the public interest. At the same time, the court has to examine how important it is to maintain the status quo, which in this instance means Texas keeps deporting people.
Texas made two major arguments in this case. First, they said that not deporting people for 100 days will cost them millions of dollars as they pay for public services for undocumented people. Next, they argue it isn’t fair the Biden administration did this via an executive action and that it is too broad.
The first argument is straight-up nonsense, and the ACLU addressed it in an amicus brief in this case. The ACLU pointed out that Texas didn’t offer any specific evidence that it would have to spend millions if some unknown number of people get to stay in the state for 100 more days. Instead, Texas just told Tipton it would cost them a bunch of money, and the judge ignored the fact that they didn’t provide any details on that.
The second argument—that Biden can’t do this via executive action—is rich coming from Abbott, who was wildly enthusiastic about Trump’s anti-immigration executive orders.
What’s most repugnant about Tipton’s holding, though, is that it ignores who Texas is really out to harm: undocumented immigrants.
The Texas government’s position here is one long wail that if it’s forced to stop deporting some—not even all!—people for 100 days, it’ll be harmed. On the other side of that is not some abstract idea, but real people who will be deported. They don’t later get to come back easily and safely to the United States if Texas doesn’t prevail in this lawsuit. They may be deported to countries in which they have never lived or countries where they may be killed. Those things are actual irreparable harms, not Texas’ vague assertion it might have to spend some money.
One last fun fact: Though this case was brought by Texas in Texas, Tipton made this injunction nationwide, which is a thing Republicans usually cry about, saying it’s overreaching and will lead to people “shopping” for a friendly judge in one jurisdiction to get a nationwide result. But when it favors them, and when a Trump judge can push Trump’s anti-immigrant worldview on the entire country, then it’s just fine.
Trump is gone, and that’s a good thing, but his anti-immigrant stench remains throughout the judiciary—and that’s not.