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Should a Single Trump Judge Have the Power to Void Biden’s Policies?

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I don’t know if lower-court judges should be able to vacate executive agency rules on their sole authority—and then be able to apply those legal rulings to the whole nation. I think the issue is legitimately complicated, and it makes me sit on the fence while staring at quicksand and scorpions on either side. The judiciary is supposed to check the Congress or the Executive Branch when they stray too far from established laws or constitutional principles. But allowing one random, unelected district court judge to void federal policy enacted by the people’s representatives also seems deeply wrong, antidemocratic, and even corrupt.

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.

Tipton’s order is legally dubious and practically unworkable. 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.

The Biden administration’s Department of Justice made all of these obvious arguments against Tipton’s order. 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.

When it comes to executive agencies, federal law says that judges can “set aside” agency actions that are “unlawful”; it defines as “unlawful” actions that are arbitrary and capricious, contrary to a constitutional right or power, or outside the agency’s jurisdiction. Biden’s DOJ argues that judges like Tipton have misunderstood the “set aside” rule: 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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