For the third time, Trump District judge Drew Tipton invalidated a Biden Administration immigration reform and ordered it to continue a restrictive Trump immigration enforcement policy. Tipton overturned a policy focusing enforcement on dangerous immigrants, as opposed to those who have simply lived in the US. Tipton issued his June 2022 decision in Texas v United States.
How did the Biden Administration seek to change Trump’s restrictive immigration enforcement policy?
The Trump Administration generally encouraged federal Immigration and Customs Enforcement (ICE) agents to arrest and seek to deport as many people without immigration papers as possible. This included people with long ties to their local communities who posed no public safety or national security risks.
Both in early preliminary directives and in comprehensive guidance in September 2021, the Biden Administration significantly changed that. Department of Homeland Security (DHS) Secretary Alejandro Mayorkas directed that ICE agents should prioritize enforcement efforts against immigrants who pose “threats to public safety and national security.” This will best use scarce DHS resources, Mayorkas explained. Being in the US without authorization, DHS continued, “should not alone be the basis” for removal, unlike under Trump.
What happened when the Biden Administration issued the improved immigration enforcement policy?
Right-wing states promptly challenged it. Texas and Louisiana filed suit in front of Judge Tipton in Texas against the initial directives in 2021. They claimed that the policy violated federal law that provided that ICE “shall” detain people eligible for deportation. Tipton issued an “unprecedented and outrageous” nationwide preliminary injunction that stopped the Biden directives and reinstituted the Trump policy. Tipton had already overturned a 100-day pause on deportations issued very early in the Biden Administration.
A month after Tipton issued the injunction in August, a unanimous Fifth Circuit panel stayed it. The panel explained that the Justice Department would likely succeed on its contention that Tipton had improperly interfered with immigration officials’ “traditional discretion to decide” on enforcement priorities. The court specifically examined the language relied upon by Tipton, and concluded that it does “not eliminate immigration officials’ ‘broad discretion’ to decide who should face enforcement action.” The judges also noted that the Administration would suffer “irreparable” injury if it could not carry out its enforcement priorities.
Undaunted, Tipton proceeded to hold a bench trial on the September DHS guidance. In a scathing opinion that tracked closely his previous rationale, Tipton invalidated it. In 96 pages, he never refuted the Fifth Circuit’s analysis. Tipton set his order to take effect a week after its issuance on June 10.
What’s wrong with Tipton’s latest immigration edict?
The criticisms leveled at Tipton’s earlier preliminary injunction apply with even great force to his recent decision. As one expert had explained, such a district court ruling would “overturn a century of precedent” giving the Executive discretion on enforcement priorities. It “threatens to force the Biden Administration to lock up many immigrants who are long-time members of their community” and pose no risk to public safety. After Tipton’s recent ruling, immigration advocates have noted that he and other Trump judges have effectively formed a “shadow Trump administration” that has blocked President Biden from changing Trump’s harsh immigration policies.
The Justice Department has made similar arguments in seeking to reverse another Trump district judge order blocking the DHS immigration enforcement guidance. The Sixth Circuit stayed that order pending appeal. The Department explained that such orders cause “confusion” and “officers not being able” to carry out their duties. They would lead to states seeking to “secure by court order what they were unable to obtain through the political process” without proper legal basis.
We do not know what appellate courts will do with the troubling decisions by Tipton and other Trump judges to perpetuate harmful Trump immigration policies. The fact that Trump has made so many appointments to these higher courts creates cause for serious concern. A key test will come soon when the Supreme Court rules on a Trump district judge order that required the continuation of Trump’s harmful “Remain in Mexico” policy. Depending on the results, Congressional action may become necessary. In any event, continued confirmation of fair-minded Biden judicial nominees remains critical.
Update: In early July, 2022, a Fifth Circuit panel including Trump judge Engelhardy denied a DOJ request to stay Tipton’s decision pending appeal. The appeal will continue.