The American judicial system has become an anti-immigrant judicial pipeline — and its on full display, and it’s dangerous. The pipeline flows from Republican Attorneys General to hand-picked United States District Court Judges (usually Trump appointees in Texas), to the conservative Fifth Circuit and finally, to the United States Supreme Court.
The latest egregious example involved Migrant Protection Protocols (MPP), commonly known as the “Remain in Mexico” policy–a Trump-era program that forces asylum seekers to wait for a possible indefinite period of time on the Mexican side of the southern border while their cases are backlogged in U.S. immigration courts–that the Biden administration sought to end on his first day in office.
On August 13, 2021, Federal District Court Judge Matthew Kacsmaryk in the Northern District of Texas, issued an absurd ruling that reinstated MPP. Kacsmaryk was, no surprise, a Trump appointee. The case was brought by Republican Attorneys General from Texas and Missouri. After Kacsmaryk issued his decision supporting the GOP AGs, Aaron Reichlin-Melnick, Policy Counsel at the American Immigration Council, noted aptly, “My God. This decision reads something straight off of Fox News.” And, the FOX News headline blared, “Remain-in-Mexico court ruling a win for Texas, Missouri over Biden admin.”
My God. This decision reads something straight off of Fox News.
Judge Kacsmaryk, a former AUSA and "commercial, constitutional, and intellectual property" lawyer, declares his judicial opiniopn that "the termination of MPP has contributed to the current border surge." pic.twitter.com/1Kf1FqiLKc
— Aaron Reichlin-Melnick (@ReichlinMelnick) August 14, 2021
In theory, unless the Biden administration reimplements MPP, they could be held in contempt of court. As a practical matter, reinstituting the policy is next to impossible. Among other things, the Mexican Government – and perhaps other nations – would have to cooperate with the U.S. to restart the expulsion of asylum seekers.
The U.S. Department of Justice appealed Kacsmaryk’s ruling to the Fifth Circuit. The panel of judges on that notoriously conservative circuit upheld the lower court ruling. An emergency appeal to the U.S. Supreme Court followed and on August 24, 2021, the conservative justices completed the job by reinstating Trump’s unlawful Remain in Mexico scheme pending resolution of the Republican lawsuit by the lower courts.
What happened was a political bait-and-switch masked as an interim Supreme Court ruling. While Trump was in the White House the conservative justices regularly upheld his administration on immigration policies – but showed their hand on this one. Legal observers were aghast. Slate’s Mark Joseph Stern tweeted, “Absolute insanity. SCOTUS’ conservative majority repeatedly cleared away lower court injunctions so that Trump could implement his immigration agenda. Now it lets a single district court judge dictate foreign policy for the Biden administration. This is beyond outrageous.”
Remember how Thomas and Gorsuch questioned the legitimacy of nationwide injunctions when they were issued against Trump? Their concern appears to have evaporated now that Federalist Society judges are issuing nationwide injunctions against Biden.
— Mark Joseph Stern (@mjs_DC) August 25, 2021
At Vox in a piece titled, “The Supreme Court’s stunning, radical immigration decision, Ian Millhiser began with the line, “The Supreme Court handed down an order Tuesday evening that makes no sense “ and concluded “With this order, Republican-appointed judges are claiming the power to direct US foreign policy — and don’t even feel obligated to explain themselves.”
This is new and dangerous legal territory.
MPP isn’t the only policy facing a federal court challenge. Another federal district court judge in that same district, Drew Tipton, recently issued an equally astounding ruling in a case brought by the GOP AGs from Texas and Louisiana that prohibited federal immigration officials from implementing civil immigration enforcement priorities directing agents to focus on national security threats, dangerous criminals, and recent border crossers. In essence, he ignored the Homeland Security Act which requires the administration to set the very immigration enforcement priorities Kacsmaryk blocked in his effort to end the long-standing practice of prosecutorial discretion. Reichlin-Melnick noted, “Judge Tipton becomes the first judge ever to declare that DHS may not—even in the exercise of prosecutorial discretion—release someone from detention during the removal period. This would overturn a century of precedent giving the Executive clear discretion over these decisions.”
Judge Tipton becomes the first judge ever to declare that DHS may not—even in the exercise of prosecutorial discretion—release someone from detention during the removal period.
This would overturn a century of precedent giving the Executive clear discretion over these decisions. pic.twitter.com/dDxAzqbIfD
— Aaron Reichlin-Melnick (@ReichlinMelnick) August 19, 2021
These cases aren’t the first time hard-core conservative Attorneys General launched lawsuits in Texas with friendly judges – and it won’t be the last. Here’s how the anti-immigrant judicial pipeline works:
- The Texas Attorney General, Ken Paxton, is usually at the center of initiating these cases often with his fellow GOP AGs;
- They hand-select a right-wing federal judge in Texas, often a Trump appointee with Federalist Society ties;
- Those judges side with the GOP AGs leading to an appeal to the conservative Fifth Circuit;
- From there, it’s up to the now very conservative Supreme Court. And, now we know the Supreme Court is firmly on board.
Unless the White House and Democrats on Capitol Hill institute changes into the federal judiciary, this is our future on immigration and other progressive issues.
Another recent immigration example was DACA. On July 17, 2021, Federal District Court Judge Andrew Hanen declared the Deferred Actions for Childhood Arrivals (DACA) program unconstitutional. The ruling emanated from a lawsuit brought by Texas Attorney General Ken Paxton, joined by several other GOP AGs.
The result was no surprise to legal observers. In 2015 Paxton and 25 of his GOP colleagues brought a similar lawsuit to block the DAPA program–which expanded DACA-like protections to the parents of U.S. citizen children. Paxton filed it in the Southern District of Texas aiming for the courtroom of U.S. District Judge Andrew Hanen, who had a reputation for issuing rulings gratuitously excoriating the immigration policies of the Obama administration. This was forum shopping on steroids; the Republican Attorneys General shopped around for a judge they figured would be open to their politically-charged anti-immigrant case. Then they filed it with all but knowing it would wind up in his courtroom.
And, that was before Trump packed the Court with right-wing ideologues. Now Paxton and the anti-immigrant Republicans don’t have to shop as hard.
That anti-immigrant judicial pipeline, which has only gotten more insidious, poses a threat to any immigration policy proposed by Democratic administrations. Ken Paxton and his colleagues know how to manipulate the courts and many judges in their courts of choice know their roles. The “law and order” Texas AG, who is facing a state indictment for felony securities fraud and an FBI corruption investigation, spent years trying to end DACA and is aggressively challenging Biden’s immigration agenda. It is pure politics, masquerading as jurisprudence,
For the most part, Paxton and his fellow AGs have succeeded when Republicans chose the forum. However, their efforts to end DACA were foiled by District Court Judges who were outside of their pipeline. And, in June of 2020, even Chief Justice John Roberts couldn’t go along with their intended outcome on DACA – begrudgingly. But, that was before Trump and Mitch McConnell installed Amy Coney Barrett on the Court. With her addition, the pipeline is complete.
Barrett, Gorsuch, Alito, Scalia, and Kavanaugh are the ultimate dream team for Paxton and his nativist ilk. And, they know the direct and quick route to get to them.
There’s really one way around this pipeline: Prioritize federal district and circuit court nominations and expand the Supreme Court. Winning elections is critically important to allow for the appointment of those judges, but won’t be enough given the current make-up of the Supreme Court. Otherwise, sane, thoughtful policies are subject to the whim of GOP AGs and the judges and justices who share their animus towards immigrants, towards America’s growing multiracial majority and frankly, towards the law.