A federal court in Texas blocked the Biden-Harris administration’s attempt to pause removals for 100 days pending a review of enforcement practices. Texas v. United States, No. 6:21-cv-00003 (S.D. Tex. January 26, 2021). Handing a major win to the Texas Attorney General, Ken Paxton, Trump appointee Drew Tipton granted a temporary restraining order blocking DHS from implementing the 100-day deportation pause. The TRO applies for 14 days. An appeal is likely.
As a preliminary matter, the court found that Texas has standing to sue because it provided evidence “of damage to its public fisc by causing it to increase its spending on public services to illegal aliens.” In particular, the court pointed to state expenses on emergency Medicaid, the Family Violence Program, the state’s health insurance program for children, and educational costs. The court was also swayed by the state’s claim that the 100-day pause would impose costs on Texas “because of those who may find their way to Texas from other states in the near future.”
The last claim is especially notable. If Texas is harmed by the mere fact that some undefined number of people might move there in the undefined future, which state isn’t harmed by any decision of the federal government? This is just about the description of speculation.
The court concluded that Texas is likely to win its argument that the pause 1) violates the Immigration & Nationality Act’s requirement that migrants ordered removed from the USA be removed within 90 days, and 2) DHS acted arbitrarily & capriciously by suddenly shifting immigration policy from the prior administration. Both claims conflict with the Administrative Procedure Act, the main federal law governing the process by which federal agencies carry out their duties, the court concluded.
On the first substantive point, the court concluded that federal law “clearly accords no discretion to the Attorney General to blatantly disregard the 90-day removal rule without finding that an enumerated exception applies.” Adopting Texas’s argument, the court relied on a section of federal immigration law providing, “Except as otherwise provided in this section, when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days….” To be clear, after the creation of DHS in 2002, this responsibility was handed over to DHS, but the court mistakenly referred to the Attorney General. Nonetheless, because DHS has no discretion to ignore this requirement, the court added, the January 20 Memo “appearing to do so is reviewable.”
By emphasizing the 90-day removal period, the court jettisoned existing regulations and procedures that inject flexibility into the removal process. One regulation, for example, allows migrants ordered removed to request a stay of removal. Any of a number of officials, the regulation adds, “may grant a stay of removal or deportation for such time and under such conditions as he or she may deem appropriate.” Another regulation defers removal if removal would result in torture. In still other instances, ICE misses the 90-day mark because it can’t get the travel documents needed to deport someone.
The court took issue with the blanket nature of the pause announced by Acting Secretary of Homeland Security David Pekoske in his January 20 memo. At the same time, the court downplayed the four exemptions listed in that memo. In this way, the court’s decision is reminiscent of arguments Republican-led states made against DACA, claiming that popular initiative amounted to an abdication of the federal government’s obligations. This similarity shouldn’t come as a surprise because Paxton continues to lead the effort to end DACA.
On the second point, the court acknowledged that in his memo announcing the 100-day pause, Acting Secretary of Homeland Security David Pekoske did provide some reasons for adopting a pause on removals, from Covid-19 to “operational challenges at the southwest border.” However, the court found that DHS acted arbitrarily and capriciously by failing to provide a reasoned explanation for choosing 100 days. In the court’s words, “DHS did not state or explain why 100 days specifically is needed to accomplish these goals.” In one sense the court is correct: DHS didn’t specify why it chose 100 days specifically as opposed to 99 days or 101. The more important question is whether that matters. To some extent, all line-drawing involves some degree of arbitrariness. The court failed to recognize this.
Having concluded that blocking the deportation pause is appropriate, the court turned to how far its order should reach. During the Obama and Trump administrations, federal courts frequently blocked executive enactments nationwide. As a result, a fierce debate developed over whether it is more appropriate for courts to issue injunctions that are limited to a smaller geographic region. Since the court here found that unauthorized migrants might move to Texas from other states, it concluded that a nationwide injunction was appropriate. As the court put it, “many individuals who are subject to an order of removal in other states whose removal is delayed or ultimately deferred may migrate to Texas.”
That agreement actually formed the basis of the state’s lawsuit. Indeed, the first paragraph of the state’s complaint claims that DHS “violated its written pledge” with Texas. The state then attached the agreement to the complaint in an appendix. As I commented last week, that agreement is legally precarious. Perhaps sensing this, the court explicitly noted that its decision is not based on that agreement, turning instead to the APA.
While significant, today’s order does not affect the enforcement priorities announced in Pekoske’s memo. Nor does it repeal of several immigration executive orders by President Trump.
Today’s decision is unlikely to be the last word on the legality of the 100-day removal pause. It’s too important of a policy for the administration to let it end before it really even got started.
Update: On February 2, 2021, Acting Secretary of Homeland Security David Pekoske informed Paxton that DHS views the January 2021 agreement as unenforceable and was withdrawing from the agreement. On February 3, 2021, Arizona filed a similar lawsuit. Arizona v. United States, No. 2:21-cv-00186 (D. Ariz. Feb. 3, 2021).
On February 9, 2021, the district court in Texas v. United States extended its temporary restraining order until February 23, 2021.
On February 24, 2021, the district court in Texas v. United States granted a temporary injunction against the Biden administration’s 100-day deportation pause.