Criminal Justice & the Rule of Law

Immigration Enforcement Under the Biden Administration: Testing, Testing

David S. Rubenstein
Wednesday, February 10, 2021, 8:01 AM

Initial litigation challenging the Biden administration’s immigration policy may have far-reaching implications for executive power, judicial power, federalism and administrative law.

The U.S. Supreme Court building in Washington, D.C. (Venus Fomby,; CC0 Public Domain,

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Litigation challenging the Biden administration’s immigration agenda is already underway. The inaugural test case—Texas v. United States—may have far-reaching implications for executive power, judicial power, federalism and administrative law. On Jan. 26, the U.S. District Court for the Southern District of Texas issued a nationwide temporary restraining order (TRO) to block President Biden’s “100-day pause” on deportations, which will maintain the “status quo as it existed” on inauguration day. On Feb. 9, the district court granted Texas’s request for a 14-day extension of the TRO, citing “good cause” for the extension and the state’s “irreparable harm” if the moratorium went into effect. The TRO is now set to expire on Feb. 23.

The deportation moratorium is key to Biden’s rollback of former President Trump’s immigration policies, which had stressed enforcement. The Trump administration ratcheted up immigration restrictions and narrowed access to defenses against deportation, such as claims of asylum. The Biden pause on deportation—or “removal,” as it’s called under the Immigration and Nationality Act (INA)—allows the new administration to review cases in the enforcement pipeline. That review can determine whether pending removals are consistent with the INA and with the new administration’s priorities.

Before reaching the merits of Texas’s challenge to the 100-day pause, Judge Drew Tipton held that he had jurisdiction to resolve the dispute. These jurisdictional holdings, if left intact, may be of great consequence and require close attention. Under Article III of the Constitution, plaintiffs must demonstrate a concrete and particularized injury to establish “standing” in the case; a “generalized grievance” with how the government executes the law is insufficient. In this case, Texas claims that the 100-day pause will increase the state’s expenditures of government services for some unenumerated and speculative set of aliens. The district court found Texas’s proffer sufficient, using logic that could open the federal courthouse to any state challenge to virtually any executive immigration policy with which it disagreed. It is hard to conceive of a federal immigration enforcement or prioritization program that would not have some generalized impact on a state’s coffers. For instance, underenforcement may cause state expenditures to rise, while hyperenforcement may result in less sales tax revenue or require additional state services for the dependents of deported aliens.

The court also held that a second jurisdictional hurdle did not apply. The Administrative Procedure Act (APA) expressly precludes judicial review of agency action that is “committed to agency discretion by law.” In the seminal case of Heckler v. Chaney, the Supreme Court broadly interpreted this jurisdictional requirement to preclude APA challenges to agency nonenforcement decisions. Nonenforcement decisions, the Supreme Court explained, have “long been regarded as the special province of the Executive Branch.” And, in cases like Arizona v. United States, the Supreme Court has emphasized that a “principal feature” of the immigration system is the “broad discretion exercised by immigration officials.” These precedents notwithstanding, the district court in Texas ruled that the Department of Homeland Security (DHS) had “no discretion” to institute the 100-day pause under federal immigration law. This reasoning seems to have it backward: The court effectively answered the question of whether it had jurisdiction by deciding the very issue in dispute. On the merits, the district court held that Texas had a “substantial likelihood” of demonstrating that the 100-day moratorium on deportations was “clearly” contrary to the INA and, moreover, was “arbitrary and capricious” under the APA.

The INA section directly at issue provides that “when an alien is ordered removed,” the agency “shall remove the alien from the United States within a period of 90 days” (emphasis added). In other contexts, the Supreme Court has advised that “the word ‘shall’ usually connotes a requirement.” For the statute at issue in Texas—as always—the meaning depends on the surrounding signals.

What do these surrounding signals look like? In Zadvydas v. Davis, the Supreme Court expressed its “doubt” that “when Congress shortened the removal period to 90 days in 1996 it believed that all reasonably foreseeable removals could be accomplished in that time.” Apart from the pragmatic challenges, other textual clues reinforce the court’s doubt that “shall” is a categorical mandate. When the removal statute was passed, Congress clearly reckoned with the reality that some (if not many) aliens under a final deportation order would not be physically removed from the country within 90 days. As just one example, a subsection of the same statute pertains to DHS’s supervision of aliens beyond the 90-day removal period. Elsewhere in the statute, Congress was explicit that “[n]othing” in it “shall be construed [by courts] to create any substantive or procedural right or benefit that is legally enforceable by any party against the United States … or any other person.” In other words, Congress anticipated that not all aliens would or could be removed within the 90-day period, anticipated that third parties might want to force the agency’s hand, and explicitly sought to foreclose that possibility.

Moreover, long-standing agency regulations authorize DHS to issue stays of removal well beyond 90 days, which Congress has left undisturbed. This discretion to stay deportations likely rests in executive power and prefigures in Congress’s broad delegation of authority to DHS to “issue such instructions” and “perform such other acts as he deems necessary for carrying out his authority” under federal immigration law.

Against this statutory and regulatory backdrop, the Supreme Court has long recognized DHS’s broad discretion to forebear the deportation of otherwise removable aliens. In Reno v. American-Arab Anti-Discrimination Committee, for example, the court stated that “the Executive has discretion to abandon” execution of removal orders. Most recently, in Department of Homeland Security v. Regents of University of California, the court took pains to avoid declaring any judicial or congressional limits on DHS’s prosecutal discretion when it rebuked the Trump administration’s attempt to repeal DACA. Indeed, the majority opinion faulted the Trump administration for not considering leaving intact DACA’s forbearance of removal policy, even if DHS thought other parts of the program were unlawful.

The Supreme Court’s prudence or ambivalence on matters of immigration enforcement is understandable: Drawing sharp boundaries around DHS’s enforcement authority and priorities would implicate not only the executive power but also Congress’s authority to compel enforcement and the judicial authority to police those institutional dynamics. The district court’s opinion in Texas seems to have little or no regard for these institutional concerns. President Biden’s 100-day pause conflicts with the immigration code only if—as the district court held—“shall” means must. But the surrounding contextual clues suggest that is not the best, much less the only, interpretation. A short pause on deportations, during a presidential transition, is in accordance with (and far less significant than) the types and manner of prosecutorial discretion exercised by prior administrations of all political leanings.

The district court’s alternative ruling that the 100-day pause was “arbitrary and capricious” may fare no better. Under the APA, agencies must provide adequate explanations and justifications for their actions. An intractable feature (and frustration) of the APA’s reason-giving requirement is that there will always be more questions than answers, and it is impossible for agencies to anticipate which questions and answers a reviewing court will insist upon.

The DHS memorandum at issue directs “[DHS] components to conduct a review of policies and practices concerning immigration enforcement” and calls for “interim policies during the course of that review,” including the 100-day pause “on certain removals to enable focusing the Department’s resources where they are most needed.” The memorandum explains that the pause will enable the agency to focus its resources at the southern border “to ensure safe, legal and orderly processing, to rebuild fair and effective asylum procedures … , to adopt appropriate health guidelines and protocols, and to prioritize responding to threats to national security, public safety, and border security.” The Texas court found these explanations insufficient because DHS did not explain, in its memorandum, “how the pause in removals helps accomplish these goals,” much less “state or explain why 100 days specifically is needed to accomplish these goals.”

Arguably, this asks too much of DHS, especially in the context of an interim nonenforcement policy. While reasonable minds can differ on whether DHS adequately explained why a deportation pause was necessary or desirable, the court’s suggestion that DHS is required to explain why it chose “100 days specifically”—as opposed to some other number of days—seems beyond the purview of what the APA requires.

When DHS (or any agency) selects a number of days along a continuous spectrum, there is no logical stopping point for explaining why 100 days was chosen instead of 79, 103 or 112 unless it falls on a Sunday. Perhaps an explanation might be expected if DHS was directly confronted with a concrete choice between two or three (or even four) alternatives. But that was not the case here. The problem of infinite regress makes the district court’s demand for more specificity highly dubious: it would call countless agency actions into doubt, be almost impossible to manage, and obstruct meaningful agency deliberation and public accountability.

Beyond the foregoing APA claims, Texas’s complaint boasts of a written agreement between Texas and the outgoing Trump administration, signed on Jan. 8. According to Texas, the Biden administration is contractually required to “[c]onsult with Texas before taking any action or making any decision that could reduce immigration enforcement, increase the number of removable or inadmissible aliens in the United States, or increase immigration benefits or eligibility for benefits for removable or inadmissible aliens.” Furthermore, DHS would be required to consider Texas’s “input” and provide “a detailed written explanation of the reasoning behind any decision to reject Texas’s input before taking any action.”

Pointedly, the district court did not base its TRO on the agreement because the issues were “of such gravity and constitutional import that they require further development of the record and briefing prior to addressing the merits.” Taking the district court’s lead, I too will save my thoughts about this unprecedented agreement for another day. Other states have signed similar agreements with the outgoing Trump administration (and not just regarding immigration matters). If these agreements have any legal teeth, much more than the 100-day pause is at stake. They could result in a marked reduction in flexibility for both the Biden administration and all successors.

Despite its early procedural posture, Texas v. United States is already shaping up to be a major test case for the Biden administration. Even without relying on Texas’s agreement with the Trump administration, the district court’s jurisdictional, statutory and APA rulings were enough to halt Biden’s 100-day moratorium on a nationwide basis. Moreover, the court’s TRO, reasoning or both is already having ripple effects. Some DHS agents may be under the wrong impression that the TRO precludes any prosecutorial discretion for aliens under a removal order, even in individualized cases. If so, that interpretation clearly conflicts with longstanding precedent and exceeds the scope of the TRO, as a Feb. 3 letter from 120 law professors and immigration experts to Secretary of Homeland Security Alejandro Mayorkas explains. Any apparent confusion or dissensus within DHS about enforcement policies under the Biden administration is precisely why top-down guidance from DHS—like the 100-day pause—is needed and, by the same token, why the opening salvo in Texas may have far-reaching implications.

David S. Rubenstein is the James R. Ahrens Chair in Constitutional Law and director of the Robert Dole Center for Law and Government, Washburn University School of Law. He currently teaches constitutional law, administrative law, legislation and jurisprudence.

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