Well, that didn’t take long. Just six days after the start of the Biden administration, the federal courts, piled with judges appointed by Donald Trump and sustained by the Senate by Mitch McConnell, thwarted part of the new president’s agenda. I could say “I told you” because I did.
The first strike was perhaps predictable against Biden’s immigration platform. On the day of the inauguration, the acting secretary of the Ministry of Homeland Security issued an order suspending most deportations for 100 days. The order was not radical; The policy on who can be removed has not changed. The aim was simply to prevent the government from getting as many people out of the country as quickly as possible while the new government tries to figure out which deportations should take precedence and whether the deportees are going through due process against anything got the hell what Trump did.
The arrangement was intelligently designed to avoid judicial review. It did this through frame the “break” not as a policy change, but as a “review of policies and practices” to “concentrate department resources where they are most needed”. These are all logistical and clerical tasks that are directly the responsibility of the executive branch.
But such small concerns as “how the government actually works” don’t matter to Trump judges or Trump-focused attorneys general. Texas AG Ken Paxton, last seen trying to reverse the 2020 election results with one of the most ridiculous lawsuits I have ever seen a federal judge issue a nationwide injunction against Biden’s deportation pause. Paxton, under investigation for bribery and abuse of power, argued that the DHS was in the final days of Trump’s tenure signed an agreement promises to make any policy changes from him.
For the recording, DHS does not need to ask Paxton for permission to enforce or not enforce its own rules, nor does it need to ask Paxton for permission to use the bathroom. The Texas Attorney General is not a hall monitor.
Still, Paxton’s motion for a statewide injunction to lift Biden’s hiatus was approved by U.S. District Judge Drew Tipton on Tuesday. Tipton is a Trump agent who has been a judge for just under six months. He ruled that Texas was ready to sue the Biden government (which is wrong). He also ruled that DHS likely exceeded its powers by implementing the hiatus – which is both wrong and ridiculous given the Supreme Court’s decision in the DACA case last year, which affirmed the executive’s broad power to determine who should be deported and when I have to go. At the slateMark Joseph Stern went into detail on Tipton’s “bizarre decision” and wrote: “Tipton does not seem to have a rudimentary understanding of immigration law or the practical realities of the immigration system.”
In making the judgment a statewide injunction, Tipton was committing an act of deep hypocrisy and malice. The Republican legal institution has complained for the past four years about statewide bans based on decisions made by individual district courts. Lindsey Graham and his Senate Republicans even introduced legislation halt statewide injunctions because the courts used them to thwart Trump’s agenda.
I’ll wait for Graham to beat up Paxton and Tipton on this case. I’m sure the press conference is coming any minute.
Fortunately, this particular case of judicial hacking is not necessarily an insurmountable hurdle for the Biden government. It’s not like Tipton will pay for plane tickets or drive a bus across the border to deport people himself. The Biden government can stick to its original plan by slow moving in the relocation of immigrants with the understanding that Homeland Security takes care of it when possible. If DHS officials simply delete all cookies from their computers, who can tell if there is someone nearby who remembers the department’s Expedia login?
The executive order tested the good faith of conservative lawyers. And I think we got an answer on how much that good faith is worth. Absolutely nothing. On the very first occasion, a Republican attorney general and a Trump judge came together to make a bad decision in an attempt to stop something that is constitutional and legal.
This is what Trump judges do. This is what I told people that they would do Biden’s agenda. Getting mad at a Trump judge for enacting an incoherent frontier party to insult a Democratic president is like being mad at a shark that eats a surfer: it’s a goddamn shark; Bring a bigger boat next time.
For me, the key question that arises from this decision is whether Biden or centrist Democrats will adjust their magical thinking about the courts. Trump judges were specifically appointed to thwart a democratic agenda. Any conversation or hope that the courts will be partners in restoring the rule of law is folly.
In this case, we have a Trump lower federal judge who has been on the bench for less than a year and takes it upon himself to try to thwart an entire national immigration regime by using bad logic that is inconsistent with facts or Fact-bound is an understanding of how deportations actually work. Trump appointed 226 of these people. Most of them will serve for the rest of their natural life. There is almost no hope of keeping Biden’s agenda up in front of courts staffed by the likes of Judge Tipton.
And let’s not forget the Supreme Court. Thanks to the evil, addictive dance of Trump and McConnell that brought us Neil Gorsuch, the alleged rape attempt by Brett Kavanaugh and Amy Coney Barrett, Biden will stand before a Supreme Court rigged to produce a Conservative majority for a generation.
To paraphrase Sean Connery in The untouchables: Well, what is Biden ready for? And what is the Senate, which is barely controlled by the Democrats for the next two years (assuming no Democrats die in a state with Republican governors) ready to do? What is the plan? Pass laws and hope for the best? Do you sign executive orders and do you hope that conservative judges will remain committed to their principles of so-called “restraint of justice”? Or is the plan simply to sign the orders, pass the laws, watch them get defeated in court, and say, “Welp, we tried. Four more years. ”
Of course, I think the only solution here is to expand the courts. We need more Supreme Court judges and more lower court judges. We need more judges to level out the evil actors Trump and McConnell who are placed like landmines across federal justice. And if Republicans later take control of the legislative and executive branches of government and have the votes to repackage the courts with additional Conservative judges, so be it. At least the Democrats will have had four to eight years to pass their agenda and set good precedents for their authority. This literally can’t be worse than where we are now because where we are now are facing courts that have done this already packed with conservatives.
Judge Tipton has only shown this administration how ready he is to be a hack. And he’s not alone. Democrats won Congress and won the White House, but there are three branches of government, not two. If Democrats don’t win the courts, they will still be defeated.