As We Guessed Last Friday — Judge Tipton Simply Skipped Oral Arguments, And Issued A 105 Page Turgid Mess Of An Opinion, At Around Midnight.

I last checked the docket in Houston after 11 PM EST. Sometime around Midnight, Texas time, USDC Judge Tipton dropped the below opinion onto the PACER feed. [His earlier issued TRO was to expire at Midnight, and I get why he’d prefer this not garner a lot of press.] It is simply egregiously wrong — on the existing, controlling Supreme Court precedents.

I’ll not spend a lot of pixels / ink on his, preferring instead to repeat what RAICES and FIEL Houston explained in their cogent amici briefs — and which the Fifth Circuit and/or Supremes will almost certainly adopt, in the coming weeks. That is, Texas STILL cannot show it is special — “super-entitled,” in other words, to step in front of all other states here. And 105 pages changes. . . nothing, despite what young Judge Tipton intones.

. . .In other words, the Supreme Court has already recognized that under the very statute on which Texas relies, the executive branch retains its longstanding discretion to stay removal. See also Nken v. Holder, 556 U.S. 418, 439–40 (2009) (Alito, J., dissenting) (“Once an order of removal has become final, it may be executed at any time” — but “the Executive Branch” may still “stay its own hand.”). The Fifth Circuit has likewise affirmed this principle. Texas v. United States, 809 F.3d 134, 167–68 & n.105 (5th Cir. 2015) (quoting AADC); see also Naidoo v. INS, 39 F. Supp. 2d 755, 761 (W.D. La. 1999) (“Requests for stays . . . are committed to the discretion of the” executive branch).

Texas does not grapple with AADC and its progeny. [Ed. Note: neither does Judge Tipton. That is disappointing — federal judges are supposed to be better than this.] Instead, it [and he] focuses on a single word in § 1231(a)(1)(A) — “shall” — contending that Congress thus eliminated the executive branch’s longstanding discretion to stay removal for those in the removal period. But it is a “fundamental principle of statutory construction (and, indeed, of language itself) that the meaning of a word cannot be determined in isolation, but must be drawn from the context in which it is used. . . .

We will see you again and right soon, your honor — on reversal and remand. Cheers.


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