It didn't take long for the Texas attorney general to sue President Joe Biden's administration over its immigration policy — nor for a federal judge to issue a nationwide injunction freezing Biden's 100-day pause on certain deportations. If this movie sounds familiar, it should. Starting at the beginning of President Donald Trump's administration, federal courts repeatedly struck down Trump's executive orders, including a large number related to immigration, often using the tool of nationwide injunctions.
The big question that emerges from the Texas ruling is this: Will the new, more skeptical legal standards that courts developed over the last four years to combat Trump's lawlessness now be used by the courts to constrain Biden?
Liberals (including me) spent a good part of the Trump era celebrating the judicial system as a bulwark against executive action that was expansive, aggressive — and lawless. Now we may have to confront the shadow side of judicial review of executive action: judicial overreach by conservative judges, many put in place by Trump, who have the ability to block progressive policies using some of the same tools.
The order in question was issued by the Biden administration on its first day in office from the desk of the acting secretary of the Department of Homeland Security. The order specified a 100-day moratorium on most removals of noncitizens who were in the U.S. as of Nov. 1, 2020. It contained exceptions for noncitizens suspected of terrorism or espionage. And it also allowed for the removal of anyone whom the director of ICE, in consultation with the agency's chief lawyer, individually determined to be required by law to be removed.
Texas attorney general Ken Paxton filed the suit on Jan. 22, alleging that the Biden order was beyond the president's authority under federal immigration law and that it was insufficiently justified and explained as required by the Administrative Procedure Act. Paxton's rhetoric after getting the win was genuinely unhinged: He wrote on Twitter that "This was a seditious left-wing insurrection. And my team and I stopped it."
A federal district judge in Texas, Drew Tipton, agreed with both arguments and issued a 14-day restraining order blocking the Biden administration from putting the moratorium into effect. The implicit intent of this was to tell the administration that it must deport noncitizens who were already on the deportation list. (Before you ask, yes, Tipton is a Trump appointee, confirmed in June 2020.)
The first part of Judge Tipton's ruling, that the pause exceeded the scope of the president's discretion, is based on a statute that says, "When an alien has been ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days." The Biden administration reasoned that the considerable discretion that the executive branch enjoys under immigration law allows the word "shall" to be interpreted loosely.
In disagreeing, the court's ruling is reminiscent of the argument that a court used to block President Barack Obama's Deferred Action for Parents of Americans and Lawful Permanent Residents, a ruling that was ultimately left in place after the Supreme Court split 4-4. The argument that the executive has exceeded its authority under immigration law therefore goes back before the Trump administration. I might not agree with this part of Tipton's ruling, but the literal reading of the statute certainly supports the judge's decision.
The second part of the ruling, however, is clearly wrong. The judge held that the pause was "arbitrary and capricious" because it did not consider adopting a more limited policy than the pause. The judge is abusing the arbitrary and capricious standard. In fact, the Biden administration's directive — a 100-day pause including written exceptions — was quite limited.
While the cases are very different, Tipton's order clearly echoes judicial decisions that blocked Trump from putting the citizenship question on the 2020 Census and from rescinding Obama's Deferred Action for Childhood Arrivals. In both instances, the courts used the Administrative Procedure Act to say that the Trump administration had failed to explain its reasoning adequately, and that the orders were therefore arbitrary and capricious.
Aggressive judicial oversight of government action is always a double-edged sword. It may turn out that Trump-appointed judges block lots of Biden actions. That's going to lead some liberals to speak out against judicial overreach. Nevertheless, it is still worth having the power of judicial review available to avoid lawless government action when it takes place. And the Biden administration is unlikely to repeat the Trumpian excesses that made the court so important in the effort to preserve the rule of law over the last four years.
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast "Deep Background." He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include "The Three Lives of James Madison: Genius, Partisan, President."