Biden Admin. Seeks “100 Days” To Assess Whether Prior Conduct Was “Lawful”: No Government Should Be Prevented From Doing That.

Yesterday’s hasty opinion written by a young, in- experienced (and misguided) federal USDC Judge Tipton in Texas is pock-marked with egregious legal errors. Tellingly, key portions of his illogical reasoning “leaps of faith” offer no explanation, whatsoever — for ignoring clearly controlling prior US Supreme Court precedents. Let us accept that at the outset. [It is only the Biden 100 day “pause” provision however, that he purports to stop, by a TRO. . . which makes his argument all the more. . . befuddling, as to its illogic.] So, on any of at least ten grounds (including lack of standing), it is summarily reversible.

But I want to highlight the “likelihood of success” TRO requirement, here — or more precisely, the glaring lack of it. That is a pre-condition for the granting of any TRO, in any court — state or federal. It is absent here — and he knows it, so he simply states an opposite conclusion, without support or further analysis of existing law. Tipton writes:

. . .[the] language of § 1231(a)(1)(A) is not neutered by the federal government’s broad discretion in operating “the removal system” as a general matter, see, e.g. Arizona v. United States, 567 U.S. 387, 396–97, 132 S.Ct. 2492, 2499, 183 L.Ed.2d 351 (2012), the existence of statutes and caselaw outlining procedure in the event that practical circumstances prevent removal within 90 days, see, e.g. 8 U.S.C. § 1231(a)(1)(C); Zadvydas v. Davis, 533 U.S. 678, 701, 121 S.Ct. 2491, 2505, 150 L.Ed.2d 653 (2001), or regulations providing aliens an avenue to request a stay of deportation or removal, 8 C.F.R. § 241.6. . . .

So, he cites — but doesn’t distinguish — a controlling Supreme Court case that came to the opposite conclusion he offers. And then he says (without any support) that the state of Texas is likely to succeed on its claim that it may insist that the federal government not review prior, likely unlawful decisions to deport — because the word “shall” appears in a statute. He admits that the Biden Administration has broad discretion here — to review the lawfulness of prior administration interpretations (ones, by the way, Baby-T lost on, in about 33 of 35 prior federal cases).

Of course, in addition, Texas has no standing, here — and Cuccinelli could never have had authority — to offer Texas a “veto”, without considering California’s right to a similar veto, or for that matter, Louisiana’s or Alabama’s or Mississippi’s or Florida’s. But the most galling part of his decision is his pointing to cases at the Supremes that cut against him, and not even attempting to explain why this case. . . is “different.” [It is as though he’s laid out the road-map, effectively already asking for the Fifth Circuit to reverse him, perhaps so that he can say to his Texas GOP sponsors. . . “well, I tried to do what y’all wanted — but the upper courts. . . thwarted our good efforts.”]

In sum, Texas not only cannot and did not offer ANY showing of any likelihood of success, in the face of controlling Supreme Court precedent against exactly this argument — the young jurist just lept off a cliff, in saying that Texas could interpret one word, in about 1,400 pages of a statute, to neuter (his word, used in error) the requirement that all removal orders be “lawful and regular.” If the last four years’ experience in the courts has taught us anything, it is that the prior occupant of 1600 Penn. ran the opposite of lawful and regular immigration procedures. Our treaties and laws require that we review these final orders, for in many cases, they amount to death sentences (in the asylees’ home countries) — if executed hastily.

Yet Judge Tipton sees a need to rush them through — ignoring clearly settled Supreme Court law. Why might that be?

Why — indeed?


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