Biden’s on a Losing Streak in Federal Court in Texas

The administration is openly violating the immigration laws, and it’s gotten caught four times

By Andrew R. Arthur on August 27, 2021

Then-candidate Joe Biden vowed to reverse policies his predecessor implemented to gain control of illegal immigration. Now president, Biden has followed through on his promises – at points in violation of the law – resulting in chaos at the border and criminal aliens being released in communities across the United States to harm more innocent people. And of late, those policies are repeatedly getting shot down in federal court because they violate the law.

It's difficult even for me to keep these cases straight, because most have been filed in same state (Texas), involve the same federal courts, and the main plaintiff in each is the state of Texas. You could be forgiven for not realizing they are different lawsuits, alleging different violations of the law. Here is an overview.

Lawsuit No. 1: The first was Texas v. United States. The Lone Star State was alone in suing to block a 100-day removal moratorium that was issued on the first day of the president’s term (January 20) by then-Acting DHS Secretary David Pekoske.

Judge Drew Tipton of the U.S. District Court for the Southern District of Texas heard that case and issued a temporary restraining order blocking that moratorium on January 26.

As I explained, he held that the administration’s removal “pause” violated the Administrative Procedure Act (“APA”, which allows courts to set aside agency actions that are contrary to law or in excess of statutory authority), because that pause contravened section 241(a)(1)(A) of the Immigration and Nationality Act (INA).

Section 241 of the INA requires DHS to detain aliens who are under a final order of removal and remove them within 90 days. The Biden administration did not seek a stay of that order, and on February 23 Judge Tipton issued a preliminary injunction against its moratorium, which has since expired.

Lawsuit No. 2: The second case was also captioned Texas v. United States. It was heard by Judge Andrew Hanen (also in the U.S. District Court for the Southern District of Texas) and was filed by Texas and eight other states (Alabama, Arkansas, Kansas, Louisiana, Mississippi, Nebraska, South Carolina, and West Virginia) to challenge the 2012 Deferred Action for Childhood Arrivals (DACA) program.

That suit followed a September 2017 attempt by the Trump administration to “wind-down” DACA. Various plaintiffs opposed that wind-down, and various courts issued injunctions against it. Eventually, the Supreme Court in DHS v. Regents held that the Trump administration’s rescission of DACA was arbitrary and capricious in violation of the APA.

The Court notably did not decide, however, whether DACA was ever lawfully enacted to begin with. On July 16, Judge Hanen ruled that DACA was, in fact, implemented illegally.

Why would I describe that decision as a loss for the Biden administration? As my colleague Rob Law explained, on January 20, the president issued a memo “Preserving and Fortifying” DACA, and thus: “For nearly six months of the Biden administration, DACA operated in the status quo – the illegal aliens who held its benefits kept them and could renew them.”

That’s not all.

Judge Hanen concluded that the Obama administration should have undertaken “notice and comment rulemaking” before implementing DACA. Its failure to do so was a procedural violation of the APA and rendered the program’s implementation legally infirm.

Had he rested on that finding, the Biden administration could have simply gone back, published an Interim Final Rule in the Federal Register with a 60-comment period, and reimplemented the program, possibly with some modifications (as it had told the court it would do).

Instead, however, Texas and the other states alleged – and Judge Hanen found – that the DACA program substantively violated the APA, too, because Congress had never given DHS any authority to adopt DACA to begin with. Quite the opposite, as the court found: “Congress has continued to consider and reject proposals to protect a DACA-like population” contained in various so-called “DREAM Acts” and other bills.

That didn’t completely forestall the president’s proposed DACA efforts, but it made it much more difficult for him to do a new DACA, at least unless and until that decision is reversed (the administration signaled it would appeal, but that decision has not been vacated).

Lawsuit No. 3: The third case has a slightly different caption: Texas v. Biden.

There, as I explained on August 23 and August 17, the states of Texas and Missouri sued in the U.S. District Court for the Northern District of Texas to block the Biden administration’s termination of the Migrant Protection Protocols (MPP, better known as “Remain in Mexico”). The states argued that the termination of MPP increased the costs to each and put a strain on their public services.

After considering the matter, Judge Matthew Kacsmaryk blocked the Biden administration’s termination of MPP, finding that it did not comply with the APA. Key to that decision is a point that I have made often: Migrants apprehended entering the United States illegally are supposed to by law be detained until their cases can be resolved.

The Biden administration contended, though, that it has so many illegal migrants showing up at the border to deal with that it cannot detain them all, and so it has had to cut corners.

Of course, it has expelled many under Trump-era orders issued by the CDC under Title 42 of the U.S. Code in response to the Covid-19 pandemic, although the number and percentage of illegal migrants expelled under Title 42 have both been in decline since May, even as apprehensions have surged. Not enough, however, to allow DHS to handle the overflow.

ICE has detained a few of the more than 390,000 illegal entrants Border Patrol apprehended at the Southwest border who weren’t expelled beginning in February, but the administration has apparently released the vast majority into the United States under a very limited DHS authority called “parole”.

By law, such parole is supposed to be granted to aliens only individually (“on a case-by-case basis”), and only in individual cases where it is necessary “for urgent humanitarian reasons or significant public benefit”.

There is no way that DHS can grant parole on a “case-by-case basis” to the tens of thousands of aliens Border Patrol apprehends each month who are neither being detained by ICE nor expelled under Title 42; or that the release of each and every one of them is required for “humanitarian reasons” or “significant public benefit”.

And in fact, the Biden administration is proposing to give itself – notwithstanding the clear limitations that Congress placed on such releases – the power to simply parole every alien it can’t detain.

Note that above I explained that the Biden administration has “apparently” been releasing most illegal migrants on parole. I can only assume that it is, because DHS has not been forthcoming with much information about what, exactly, it is doing with those aliens.

Faced with almost 200,000 aliens in custody after they have been apprehended entering illegally each month (Border Patrol’s total for July at the Southwest border, not counting an additional 12,895 deemed inadmissible by CBP officers at the Southwest border ports), DHS actually has a third option: Congress gave it the power to return them back across the border to await their removal hearings.

That is what MPP did. In terminating MPP, Judge Kacsmaryk found, DHS took this option out of the hands of immigration officers. To put it perhaps too simply, that is why he blocked DHS from terminating MPP.

He did not require the department to return any alien to Mexico (he admitted he could not do so). But as he explained, eliminating such returns left DHS with just the two other options: Detaining those aliens or releasing them in accordance with the law, one at a time.

The Court of Appeals for the Fifth Circuit declined to stay that injunction on August 19. Most significantly, the circuit court held that what DHS cannot do “is simply release every alien” subject to detention under section 235 of the INA (almost all of them) “en masse into the United States”.

But as noted, that is “apparently” what the Biden administration has been doing up to this point.

Late on August 24. the Supreme Court denied the Biden administration’s application for a stay of Judge Kacsmaryk’s order, holding the government had “failed to show a likelihood of success on the claim that the memorandum rescinding” MPP “was not arbitrary and capricious”. I analyzed the Court’s order on August 26, but the upshot for now is that DHS is required to implement MPP “in good faith”.

Note that Texas and Louisiana filed their complaint in that case on April 13, after the administration had suspended new enrollments in MPP (on January 20), but seven weeks before it terminated the program (on June 1).

The White House apparently had little interest in the states’ contentions that the ongoing “migrant surge has inflicted serious costs on Texas as organized crime and drug cartels prey on migrant communities and children through human trafficking, violence, extortion, sexual assault, and exploitation”, and heightened human trafficking concerns in both Texas and Missouri.

Rather, the administration did what Biden stated he would do on the campaign trail: end MPP, even though the “facts on the ground” had changed between the time he made that statement (when Trump programs like MPP brought a level of control to the border) and the end of May (when Border Patrol was apprehending almost 5,570 illegal migrants per day).

Thanks to Judge Kacsmaryk, a three-judge panel of the Fifth Circuit, and the six justices on the Supreme Court who voted to deny the government’s request for a stay of the injunction of MPP’s termination, the White House likely cares a whole lot more now what is happening to the citizens of Texas.

Lawsuit No. 4: The fourth case is again captioned Texas v. United States, which I discussed on August 23. This one was brought by the states of Texas and Louisiana against DHS and considered (once more) by Judge Tipton.

The states alleged that DHS’s failure to detain and remove criminal aliens posed a danger to their communities and increased the incarceration costs for each.

On August 19, Judge Tipton blocked restrictions that the Biden administration had imposed on ICE officers in January and February, which essentially prohibited them from even questioning (let alone detaining and removing) most removable criminal aliens.

According to the court, the problem with the Biden administration’s ICE restrictions is that they fly in the face of the agency’s mandatory duties under two separate immigration statutes.

The first is section 236(c) of the INA. It requires DHS to “take into custody” – and hold – every inadmissible criminal alien, and most deportable ones, as soon as they are released from incarceration.

The second statute is section 241(a)(2) of the INA, which I alluded to above in discussing Judge Tipton’s first Texas case. It requires DHS to (1) remove every alien under a final order of removal in 90 days; (2) detain those aliens pending removal; and (3) “[u]nder no circumstance” release the ones who are removable on criminal grounds.

As Judge Tipton recognized, those are hard and fast rules that the Biden administration must comply with, but rules that the restrictions it had imposed on ICE officers were openly flouting. Instead, the president has been attempting to pick and choose which criminal aliens ICE could detain (answer: not many) and expecting to get away with it.

Because the court found that Texas and Louisiana had standing (that is, the ability to bring a suit) to sue the administration over its flagrant violations of these laws, it did get caught violating the law, and now has to answer.

That case took an interesting, and somewhat disturbing, turn on August 23, which demonstrates the disregard that the executive branch has for Judge Tipton and the niceties.

The judge did not stay his order for a week to allow the Biden administration to seek a longer stay of his order (as Judge Kacsmaryk did, although he was under no obligation to do so). The administration filed an appeal of Judge Tipton’s order with the Fifth Circuit the day after it was issued, but DOJ was scheduled to go back to Judge Tipton’s court in the matter at 3:15 pm CDT on Monday.

According to Politico, however, Biden’s DOJ set a deadline of 2:00 pm that day for the court to rule on the government’s request for a stay of its injunction of the ICE restrictions. Otherwise, it would seek emergency relief from the Fifth Circuit.

Pro tip: Litigants don’t get to set deadlines for the court – any court – and especially not a deadline that would expire 75 minutes before a scheduled hearing in the case.

Here is how Politico described the proceedings:

“Whose idea was it to impose a 2 p.m. deadline on the court?” Tipton asked, repeatedly demanding to know who at the Justice Department decided to tell him that they’d go to the 5th Circuit Court of Appeals at that hour if he hadn’t ruled on the stay request.

[T]he DOJ Civil Division attorney speaking for the federal government at the video hearing . . . didn’t answer Tipton directly.

“This is the view of the United States,” [DOJ counsel] said. “I can’t speak to internal deliberations. It shows the urgency that we have and the great irreparable harm posed by the injunction.”

Such “great irreparable harm” that an illegal policy that has been in effect for seven months couldn’t be paused for an hour and 15 minutes? Was the president afraid that rogue ICE officers were going to swarm the streets between 2:00 and 3:15 arresting drunk drivers and spousal abusers?

With due respect to the DOJ counsel (who claimed he could not disclose who had made the decision because it would “divulge privileged information about the department’s work” – seriously?), what “irreparable harm” does the Biden administration face if it is not allowed to violate the law?

And note that Judge Tipton never told any ICE officer to arrest any alien (again, he can’t, and admitted as much). Instead, he is blocking the Biden administration’s attempt to prevent them from doing so, except under its rules. Arresting and detaining those aliens is what Congress has told those ICE agents to do (and what you are paying them for).

None of the orders in these four cases is terribly notable or exceptional, except to the degree that they reveal the extralegal shenanigans the Biden administration has been attempting to get away with since January 20. The president is free to demand that DHS follow his policies on how to enforce the law, but they must at least be allowed to enforce the law.

He hasn’t been allowing them to do so. The courts say he must.

The Biden administration is already finding out that the court of public opinion can be even harsher in its judgments about his immigration policies than the various judges considering these different cases with similar names. But, those judges, and more importantly the states filing those suits, are revealing that the Biden administration has little regard for the what the laws require.