During March, Trump-nominated district court judges issued three more rulings that interfere with Biden Administration actions. These included two immigration-related orders and a decision stopping enforcement of Air Force COVID-19 vaccination requirements. These rulings continue the disturbing pattern of Trump judge orders harming efforts to protect  public health and national security and to reform troubling Trump immigration edicts.

 

Trump Judge Requires Return to Trump Policy of Immediately Expelling Unaccompanied Immigrant Children

 The Trump Administration had issued a disturbing order that “immediately expels immigrants at the border, blocking them” from seeking asylum or other relief. Known as the Title 42 order, public health concerns allegedly led to the edict. The Biden Administration soon began to reassess the order. Initially, it exempted unaccompanied children, so that they would not be immediately sent back alone to Mexico or elsewhere.

The State of Texas filed a lawsuit to challenge the Administration’s action. Trump judge Mark Pittman made a March 4 ruling on a preliminary injunction motion. He ordered immediate expulsion of unaccompanied children to resume. Immigration experts criticized the order. One noted that the Trump policy really “was never about public health.” She explained that the order would “return children arriving at the border alone to harm in Mexico” or other countries.

Fortunately, the Texas decision may have limited effect. On the same day Trump judge Pittman issued it, the DC Circuit ruled in a different case that Title 42 could not be used to send immigrant families back to places they would face persecution or torture. On April 1, the administration announced it would rescind Title 42, effective by the end of May. During that period, the CDC will implement a program to provide COVID-19 vaccinations to immigrants at the border. It remains unclear whether Texas or others will challenge the April 1 decision.

 

Trump Judge Partly Blocks Biden Administration Immigration Enforcement Priorities

 After a Trump judge temporarily blocked it, the Biden Administration issued guidance in fall, 2021 concerning immigration enforcement. The guidance directed Immigration and Customs Enforcement (ICE) officials to focus on immigrants who pose “public safety and national security threats.” This policy contrasts sharply with Trump Administration practice. Under Trump, ICE agents often went after long-time residents with ties to the community and who did not pose such threats.

The states of Arizona, Montana, and Ohio nevertheless sued, claiming that the guidance conflicted with federal law. In cases last year, federal judges in Florida and Arizona declined to interfere with the enforcement priorities. But Ohio Trump judge Michael Newman issued a preliminary injunction in March, at least partly blocking the enforcement guidance.

Immigration experts and attorneys roundly criticized the ruling. As one explained, “[e]very administration has had priorities to guide enforcement decisions,” and there is “no basis in law” to “treat the Biden Administration’s priorities differently.”

The precise scope and effect of Trump Judge Newman’s order remains somewhat unclear.  Although written broadly, the injunction appears to exempt from the new priorities only those immigrants who have committed violations subject to “mandatory detention” or who have been ordered to be deported within 90 days. Litigation will continue in the case, along with the disruption and uncertainty caused by Newman’s order.

UPDATE: On appeal, the Sixth Circuit stayed Newman’s preliminary injunction ruling and, in a decision in July 2022, reversed it. There were no Trump judges on the appellate panel, but the decision was written by conservative Chief Judge Jeffrey Sutton.

 

Trump Judge Stops Enforcement of Air Force Vaccine Requirement

 Trump Ohio district judge Matthew McFarland issued a troubling preliminary injunction in late March.  He stopped the Air Force from taking any action against 18 servicemembers who refused to take required COVID-19 vaccinations for religious reasons. The Air Force had considered and denied a request for a religious exemption. It had granted such an exemption to other servicemembers based on individual circumstances.

As in a Georgia case, McFarland rejected the Air Force argument that it had a “compelling government interest” in “maintaining a healthy and military force through vaccination.” Instead, he criticized Air Force superiors because they have “loaded their weapons” against the objectors.

McFarland also ignored a 6-3 order by the Supreme Court a week earlier concerning the Navy SEALs. In that case, the Court stayed a lower court order that prohibited enforcement of a Navy requirement that SEALs and others receive COVID-19 vaccinations. The lower court order prohibited even reassignment of SEALs who refused a vaccine for religious reasons. As Justice Kavanaugh noted, that order contradicted the “bedrock constitutional principle” that the President and “not any federal judge” is commander in chief. Justices Gorsuch, Alito and Thomas dissented, however, and the future of the issue remains in doubt.