As he has done before, Trump district court judge Drew Tipton improperly interfered with a Biden Administration initiative by issuing an injunction that blocked an order concerning immigration policy and ordered a return to Trump Administration practices. This injunction reversed Administration directives that the Immigration and Customs Enforcement agency (ICE) focus its enforcement efforts on immigrants who are national security or public safety risks. The August 2021 decision was in State of Texas v. United States of America.
One of the criticisms of Trump Administration immigration policy was that it allowed ICE agents to pursue anyone who had allegedly violated immigration laws, regardless of whether they posed any dangers or instead had long ties to the US, including long-time residents released from local custody for minor traffic or other offenses. In January and February 2021, the Biden Administration issued memoranda that directed ICE agents to focus on arresting and detaining immigrants considered public safety or national security threats, including those convicted of specified felonies or gang-related offenses, and to get permission from supervisors before operating outside those priority areas. Texas and Louisiana challenged these actions in federal court in Texas, claiming that they violate a law that states that ICE “shall detain” people eligible for deportation.
Trump judge Tipton issued what has been called an “unprecedented and outrageous” preliminary injunction in favor of the two states as the lawsuit continues. The edict does much more than repeal the Biden Administration memos as applied to Texas and Louisiana. Instead, it applies on a nationwide basis, requires that the government report to the court by September 3 the specific “legal standard” it is using concerning detention of immigrants, and mandates a report from the government every month stating the number of immigrants released from federal, state or local custody the previous month who it has not detained. For each such person, the order requires the government to file “under seal” the last known address and “offense for which the alien had been incarcerated,” and to retain a “contemporaneous record” of the “reason why the alien was not detained and the individual who made that specific determination.”
Immigration experts have severely criticized Tipton’s injunction. Aaron Reichlin-Melnick of the American Immigration Council noted that Tipton had given himself “extraordinary power” to “almost single-handedly oversee the entire ICE apparatus” and “threatens to force the Biden Administration to lock up many immigrants who are long-time members of their community” who the government would have no interest in detaining. Others compared the injunction to an edict forbidding a police department from “using their resources to target bank robbers” and noted that Tipton has effectively made himself “the emperor” of US immigration policy. Reichlin-Melnick wrote that the decision, if upheld, would “overturn a century of precedent giving the Executive clear discretion” over such decisions on immigration enforcement.
Hopefully, even the very conservative Fifth Circuit will agree that Tipton’s latest oder goes too far, but we simply do not know. The case is yet another reminder, as part of our fight for our courts, of the importance of confirming fair-minded Biden nominees to federal courts at all levels who can help counteract such troubling Trump judge rulings.
Update: In September 2021, a unanimous panel of the Fifth Circuit, including George W Bush nominee Leslie Southwick, issued a stay of Tipton’s order that the Biden Administration return to Trump enforcement policies. The court noted that the Justice Department was likely to prevail on its contention that Tipton had improperly interfered with immmigration officials’ “traditional discretion to decide” on enforcement priorities and who to deport, especially in light of scarce resources.