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01/29/2021

Enjoining the 100-Day Deportation Moratorium
Michael Ramsey

Via Josh Blackman at Volokh Conspiracy, SDTX Enjoins Biden Administration's 100-Day Moratorium on Deportations Based on DACA Decision.  The temporary injunction relies on two grounds: (1)  that the policy violates 8 U.S.C. § 1231(a)(1)(A); and (2) that it is arbitrary and capricious under the Administrative Procedure Act.  Professor Blackman quotes this section of the APA analysis (his emphasis): 

Here, the January 20 Memorandum not only fails to consider potential policies more limited in scope and time, but it also fails to provide any concrete, reasonable justification for a 100-day pause on deportations. The January 20 Memorandum states that the 100-day pause is required to assess immigration policies because of the "unique circumstances" present with respect to immigration, including "significant operational challenges at the southwest border as [the United States] is confronting the most serious global public health crisis in a century." (Dkt. No. 2-2 at 2). DHS specifically cites to its apparent (1) need for a comprehensive review of enforcement policies, (2) need for interim civil enforcement guidelines, and (3) "limited resources" that would necessitate a pause in executing removal orders. (Id. at 2–5). Additionally, the January 20 Memorandum states that the 100-day pause in deportations is necessary to "(1) provide sufficient staff and resources to enhance border security and conduct immigration and asylum processing at the southwest border fairly and efficiently; and (2) comply with COVID-19 protocols to protect the health and safety of DHS personnel and those members of the public with whom DHS personnel interact." (Id. at 3). The January 20 Memorandum also provides that DHS "must ensure that [the agency's] removal resources are directed to the Department's highest enforcement priorities." (Id.). DHS, however, never explains how the pause in removals helps accomplish these goals. It remains unknown why a 100-day pause is needed given the allegedly "unique circumstances" to which the January 20 Memorandum alludes. Indeed, despite such unique circumstances, DHS did not state or explain why 100 days specifically is needed to accomplish these goals. The silence of the January 20 Memorandum on these questions indicates that the terms provided for in the Memorandum were not a result of "reasoned decision-making." Allentown Mack Sales, 522 U.S. at 374, 118 S.Ct. at 826.

This cannot be right.  I'm not an APA scholar, so I have no opinion what the APA requires.  But if this is what the APA requires, it seems unconstitutional.  It's one thing for the APA to regulate executive agency procedures when Congress delegates rulemaking authority (in effect, lawmaking authority) to the agency.  But this is pure executive power being exercised here.  The President is deciding how best to execute the law in terms of enforcement.  (I don't think I agree with the policy, but that's beside the point.)  The President is the constitutional decisionmaker here (exercising "the executive Power" of Article II, Section 1), and his decision should not be subject to what is in effect policy second-guessing by the judicial branch (Professor Blackman calls it "lower courts ... Monday-morning-quarterbacking every change in executive-branch policy").  Perhaps its permissible to have some very low level of judicial review to assure the President isn't making decisions by flipping a coin.  But the standard adopted here would allow a court to overturn almost any executive policy decision on the ground that there could (in the court's view) be a better way of doing it.

(I'm not expressing any opinion here on the alternative ground for the order.)