In the United States, it is legal for there to be a court with a single judge. According to 28 U.S. Code § 2284, he “may grant a temporary restraining order on a specific finding, based on evidence submitted, that specified irreparable damage will result if the order is not granted.”
That is exactly why the Texas attorney general, Ken Paxton, resorted to involving Judge Drew Tipton in the lawsuit against the new federal parole, not by chance an actor with a fairly long history of opposition to the Biden administration on immigration matters. It is the seventh case that Paxton has handed over to him.
Nominated by then-President Trump in February 2020, Tipton has his kingdom in the Southern District of Texas, and is considered one of the most ideological and politicized judges in the United States. If his history is reviewed summarily, data such as the following would appear:
On January 26, 2021, he ordered a halt to an executive order issued by Biden to stop the deportation of some immigrants for one hundred days. Tipton’s document was aimed at temporarily preventing the new president from revoking the Trump administration’s immigration policy, euphemistically known as the “Migrant Protection Protocols” (MPP). It is nothing other than the “Stay in Mexico” program, created by the Trump government in January 2019 to send asylum seekers who were waiting for a response on their cases to the Mexican side; in contravention of laws, agreements and regulations that had governed the country for years.
In the four years of the Trump administration, the immigration system that the last nine presidents of the United States had built was destroyed, which occurred, by the way, without asking for authorization from Congress.
Biden’s text instructed the Department of Homeland Security to review its practices and establish temporary guidelines, including ceasing deportations of immigrants who had arrived in the United States before November 1, 2020 and were not suspected of terrorism, espionage, or other risk for national security.
The judge then acted like the hand of God: he temporarily stopped that moratorium after Attorney General Ken Paxton argued that an agreement the state had with the Department before Biden’s arrival had been broken, and that had violated federal law.
A central element appears in the doctrine defended by America First Legal: the so-called “executive overreach,” one of the philosophical-conceptual bases of the lawsuit against the new parole program for Cubans, Haitians, Nicaraguans and Venezuelans. And expression, par excellence, of the so-called culture war. Sounds like a manifesto from the old days:
“The radical left is using its power inside and outside of the government to destroy our country. It is opening America’s borders, shutting down American energy, trying to take over American elections, and violating the fundamental civil rights of the American People.
“At America First Legal, we are building a team of some of the nation’s best legal, political, and strategic thinkers to challenge this lawlessness at every turn. We will use every legal tool at our disposal to defend our citizens from unconstitutional executive overreach.
“With America First Legal, we are turning the legal tables on the radical activist left. We will wage a forceful defense of our rights, our country, and our cherished American way of life.”
Later, on September 15, 2021, a three-judge panel of the Fifth United States Circuit Court of Appeals ruled that Tipton’s ruling was incorrect, caused by his “disregard for the long tradition of executive prosecutorial authority.” Leaving aside for the sake of synthesis the concomitant legal tug-of-war, what is certain is that in July 2022 the Department of Justice asked the Supreme Court to stop Tipton’s order, but it voted 5-4 against the request. Only conservative Judge Amy Coney Barrett sided with the three liberal judges.
It means that even if the Court rejects Tipton’s reasoning, the judge’s order will be in effect for months until the Supreme Court strikes it down, if at all. Also, in other words, that the Biden administration has its hands tied: it cannot implement it while it waits for the Supreme Court to hear the arguments and issue a decision.
The strategy with the new parole program is to submit the new lawsuit to the same instances as on that occasion, convinced that in the end the Supreme Court — dominated by conservatism thanks to the three judges that Trump managed to place — will agree with them, at least temporarily. The logic is: “That has to be stopped. The details will be seen later.”
In this regard, a specialist comments:
“Paxton took advantage of a quirk—really, a loophole—in the federal judiciary: A state can pick the specific judge who will oversee its case by filing in a small division where only one judge sits. Using this strategy, Paxton has positioned his cases before a rotating cast of the same conservative judges, most of them nominated by Donald Trump. They have dutifully played their role in this pantomime of litigation, issuing an unending series of sweeping injunctions that block Biden administration policies nationwide for months or years.”
“The Court’s decision to prevent the Biden administration from setting aside immigration laws enacted by Congress is a much-needed remedy for DHS’s illegal action. A near-total moratorium on deportations would only serve to endanger Texans and undermine federal law,” Paxton said. And he expanded: “blatantly illegal security threats cannot be allowed to continue, and the rule of law must be upheld. I commend the Court for prioritizing the law and the safety of our citizens, and I will continue to defend Texas against the illegal and unconstitutional actions of President Biden. “VICTORY,” he cried out in a tweet. And he ended by describing the moratorium as a “seditious insurrection of the left.”
The immigration attorney Aaron Hall said: “It’s like imagining a judge forbidding a police department not to use its resources to fight bank robbers.” And another: “Justice Drew Tipton’s opinion…contains a staggering array of errors of fact and of law, but so far the Supreme Court has tolerated Tipton’s overreach and allowed his order to stand.”
The lawsuit by Texas and 19 other states against the Department of Homeland Security over the parole program for Cubans, Haitians, Venezuelans and Nicaraguans is clearly a new effort to shift control of border policy from the executive branch to a single conservative judge. And they do this knowing that it has contributed to a substantial reduction of immigrants from those four nations on the southern border.
What is new, however, is that the Department of Justice is fighting a change of venue in order to transfer the case to another legal instance. According to legal scholar Michael Joseph Stern:
The DOJ provided three reasons why Tipton should transfer the case. First, it argued that under state and federal law, Texas “resides” in Austin, the state capital, while the United States government “resides” in the District of Columbia. Then Tipton should transfer the case to a federal court in Austin or D.C., where the plaintiff and defendant are. Second, the Justice Department argued that Tipton should transfer the case to Austin or D.C. under a federal law that allows a change of venue “for the convenience of the parties and witnesses, in the interest of justice.” These cities are “likely to reside in the relevant documents and any potential witnesses,” and where the relevant state and federal agencies are located. No aspect of the recent immigration policy case, by contrast, has any connection to [a court in] Victoria, Texas. Therefore, expediency and logic, in addition to “systemic integrity and fairness,” require such a transfer.
Finally, the Department made a last-minute offer: If the case is not transferred to Austin or D.C., it should at least be sent to another division within the Southern District of Texas where multiple judges sit, not just one, complicating Paxton’s efforts to select the judge who will “oversee” the case.
We shall see. The hearing is set for April 25.