A Mostly Symbolic Victory for the Rule of Law

Injunction against 100-day deportation ban may not change much

By Robert Law on February 26, 2021

Earlier this week, Judge Drew B. Tipton of the U.S. District Court for the Southern District of Texas issued a nationwide preliminary injunction blocking implementation of the Biden administration's 100-day "pause" on the removal of nearly all aliens subject to final orders of removal. This builds off of the January 26 temporary restraining order Judge Tipton previously issued against the memo by then-acting secretary of the Department of Homeland Security David Pekoske. While Judge Tipton skewers the Biden administration in a 105-page opinion for its attempt to unilaterally nullify legal obligations to enforce immigration law, the injunction, while an important procedural step, is unfortunately more of a moral victory rather than a substantive one.

Judge Tipton initially entered a 14-day temporary restraining order to give the government (i.e., the Biden administration) an opportunity to demonstrate that the 100-day deportation freeze followed the proper procedural requirements. It failed to do so. "In the instant case, the January 20 Memorandum and the corresponding administrative record fail to indicate the appropriateness and rationality of DHS's 'path' in implementing a 100-day pause on removals. In other words, the Court, even with additional briefing and the administrative record at its disposal, still cannot discern how DHS's stated concerns are logically connected with—let alone 'determinative' of—the action taken, the 100-day pause," wrote Judge Tipton.

Pointing out that President Biden issued Executive Order 13993, which called for a realignment of civil immigration enforcement priorities, mere hours before the Pekoske memo was sent out, the court opined that this "did not leave much time for reflection and analysis." "In other words, the core failure of DHS lies not in the brevity of the January 20 Memorandum or the corresponding administrative record, but instead in its omission of a rational explanation grounded in the facts reviewed and the factors considered. This failure is fatal, as this defect essentially makes DHS's determination to institute a 100-day pause on deportations an arbitrary and capricious choice."

After finding the 100-day deportation freeze arbitrary and capricious, Judge Tipton next analyzed whether the memo reflected a final agency action making it subject to judicial review. Predictably, the Biden administration claimed it was merely a general statement of policy and, therefore, exempt from judicial review. Again, the judge was not persuaded, finding "wherever an agency's decisionmakers are stripped of the ability to make 'individualized' determinations for each case, it is doubtful that the policy in question is a 'general statement.'" He continues, "Accordingly, the Court finds that the 100-day pause confers almost no discretion on DHS and its decisionmakers. In light of the fact that the 100-day pause impacts rights and obligations, the Court rejects the Government's classification of the 100-day pause as a general statement of policy."

Throughout his ruling, Judge Tipton exposes the 100-day deportation freeze for what it is—an improper refusal to enforce the law. "The 100-day pause does more than just clarify how DHS will carry forth its statutory obligations; it calls for abandoning this duty almost entirely," Judge Tipton wrote. "DHS is simply not permitted under the veil of 'discretion' to flout a federal statute."

While advocates for the rule of law are cheering on this verbal smack down of the Biden administration, Judge Tipton's opinion also concedes the limited impact the preliminary injunction has in this context. The injunction, the judge writes, "does not enjoin or impair" DHS from prioritizing resources at the border or addressing the Covid-19 pandemic. "What this preliminary injunction does is bar DHS from unlawfully enacting a blanket 100- day pause which is contrary to law." Rather, the "preliminary injunction enjoins DHS not from refocusing its priorities, but from pausing removals in violation of a timeframe mandated by a federal statute. DHS's 'resource intensive' duties and responsibilities do not grant license to suspend the law."

The preliminary injunction does not mandate that the Biden administration actually remove aliens. And that's the rub. The ruling is an important legal victory because it already shows the Biden administration's lawlessness with respect to immigration policy, but it does not force the administration to actually do its job. With the orchestrated dismantling of U.S. Immigration and Customs Enforcement already underway, the question isn't how many aliens will the Biden administration deport, but how few?