The issue of whether judges should have this power came up during a heated oral argument at the Supreme Court this week. The case, United States v. Texas, involves an appeal of US District Judge Drew Tipton’s decision to “vacate” a rule issued by Department of Homeland Security Secretary Alejandro Mayorkas. Mayorkas ordered Immigration and Customs Enforcement (ICE) to prioritize detaining undocumented immigrants who “pose a threat to national security, public safety, and border security.” Tipton is a Trump appointee for the Southern District of Texas who is basically Stephen Miller with better hair. He vacated Mayorkas’s order, saying that the federal government cannot pick and choose which immigrants to detain but must detain all immigrants who are out of status.
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Courts have long held that the Executive Branch (of which the DHS is a part) retains a level of discretion on whom to prosecute and how. Prosecutors, for instance, can decide to focus on white-collar criminals instead of turnstile jumpers (or do the exact opposite when they’re cowards). Moreover, even if the DHS wanted to detain every single undocumented immigrant in this country, it couldn’t. The DHS and ICE have neither the labor force nor the detention space (nor the toothbrushes, apparently) to round up and process every undocumented immigrant, no matter how dearly white nationalists wish they could.
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Far more interesting, though, is another argument the DOJ made—an argument to curb the power of Tipton, and the legion of Trump judges just like him, to muck up the normal procession of laws in the future.
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It argues that judges can discard agency actions that they think are unlawful, but they can’t enjoin those agency rules from applying to the rest of the country.
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[T]he justices most hostile to the DOJ’s position were an unlikely trio that included Chief Justice John Roberts, [...] Brett Kavanaugh, and Ketanji Brown Jackson.
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It’s a radical argument that would severely limit the power of judges to stop the Executive Branch. It’s also a problematic argument. While limiting the power of judges like Tipton is a great idea, allowing executive agencies to make rules and take actions without robust judicial checks is pretty scary. The group of people running the DHS and ICE before the Biden administration should be enough of a reminder that things can always get worse.
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While federal agency actions are
traditionally reviewed by the D.C. Circuit, the power to vacate agency rules is technically held by any judge, anywhere. In this case, Judge Tipton is essentially a roadside judge in Texas who tells defendants what he does or doesn’t take kindly to.
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“I want judges to enjoin federal agencies, if the judges are good” is not an intellectually defensible position, particularly once you accept the fact that Trump judges exist and will continue to wield power for some time. “I don’t want judges to be able to stop federal agencies from making rules” also seems woefully naive, given not just what Republicans do when they control the executive but also the fact that every president will try to push the limits of their power.
All I can say confidently and stridently is: A judiciary is only as good as the people running it, and right now we have some terrible people in charge.
The Nation
