A federal judge in Texas was absolutely right to keep blocking a Biden administration order that would have halted all deportations of illegal immigrants for 100 days.
Biden’s order contradicts statutory law, so Federal District Judge Drew Tipton was right this week to enjoin it.
The Biden administration order, technically a memorandum from the Department of Homeland Security, purported to halt deportations so the Department of Homeland Security could conduct a comprehensive review of practices related to immigration enforcement. However, Tipton aptly noted in his Feb. 24 ruling that there is no reason the review should be dependent on suspending deportation laws. Indeed, his ruling allowed the rest of the DHS memorandum, the review, to go forward while only prohibiting Biden from stopping the deportation process itself.
While the administrative procedures involved in all this are somewhat complicated, the issue itself is rather simple. The president has a sworn duty to see that the laws are “faithfully executed.” Statutory law sets a specific process for the removal of illegal “aliens” that involves administrative procedures, special immigration courts, and appeals rights. The law says upon exhaustion of all these procedures, upon a final ruling by an immigration judge, that “when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days.”
Again, the word is “shall,” not “may.”
The only exceptions arise under special circumstances, such as if the alien has committed further criminal acts while in the United States that require detention so as not “to be a risk to the community,” or if he is “needed to testify” in a court proceeding.
The Biden administration has no right to choose not to faithfully execute this law.
Tipton was correct to note that “in many ways, this case is about the proper limits of governmental power.” Congress legislates. The president executes. And where Congress, in a law signed by a president, legislates in a way requiring specific execution, a new president does not have the discretion to ignore it.
Presidents Barack Obama and Donald Trump repeatedly asserted more executive discretionary power than the constitutional structure was meant to allow. Trump was particularly prone to pushing things so far that courts overruled him. Almost every time he was overruled, Democrats cheered. Now that Democrats control the White House, they have no right to ignore the limits they rightly insisted be placed on presidential authority when wielded by Trump.
Tipton’s ruling is thus a welcome step in reining in the development of an imperial presidency. If Biden wants to change immigration law, he must do it through the constitutional legislative process, not by executive fiat.
