Immigration Enforcement, Strategic Entrenchment, and the Dead Hand of the Trump Presidency
2021 University of Illinois Law Review Online 46 (Biden 100 Days)
22 Pages Posted: 12 May 2021
Date Written: April 30, 2021
Hours after taking office, President Joe Biden began dismantling the immigration restrictionist policies of his predecessor. Emphasizing that immigrants “strengthen America’s families, communities, businesses and workforce, and economy” — and that “enforcing the immigration laws is complex and requires setting priorities to best serve the national interest” — the new president and other officials rescinded a raft of Trump-era directives, instituted new interim enforcement priorities reflecting the Biden administration’s own values and principles, and directed a comprehensive, 100-day review of all enforcement policies and practices. To facilitate implementation of those initiatives, officials also ordered a partial, 100-day moratorium on deportation of certain noncitizens with final orders of removal, which nevertheless permitted other enforcement activities to go forward and even allowed removal of individuals covered by the moratorium on an individualized basis.
Republican opponents immediately filed lawsuits challenging these measures, and within days the partial moratorium was blocked by U.S. District Judge Drew Tipton, who had been confirmed by the Republican-controlled Senate on a narrow, party-line vote only months before Biden’s election. In this Article, I examine Tipton’s decrees, which suffer from significant substantive flaws, and the broader significance of this effort to undermine the Biden administration’s immigration agenda. Remarkably, the seeds of this effort were planted in the days and weeks before Biden’s inauguration by the Trump presidency itself. While it is not uncommon for outgoing presidential administrations to attempt to tie the hands of their successors in various ways, the efforts by the outgoing Trump presidency and its allies to stymie the new administration’s immigration agenda have been unusually irregular and aggressive.
The lasting significance of Tipton’s decrees may appear limited, especially with the Biden administration’s first hundred days having come and gone. At another level, however — and especially in the wake of a violent, anti-democratic insurrection evidently fueled in significant part by hostility towards immigrants — Tipton’s decrees constitute a more ominous sign of what may lie ahead. As its first hundred days in office draw to a close, the Biden administration faces a growing number of lawsuits by Republican political opponents that seek to entrench the Trump immigration agenda and effectively deny the Biden administration’s ability to implement its own policies. A federal judiciary significantly transformed during the Trump presidency has become a central arena for this emergent politics of restrictionist entrenchment. By immediately giving even limited effect to the claims against the new administration’s initiatives — and suggesting that he might eventually endorse even broader claims — Tipton’s decrees offer a window into the methods that a judiciary packed with Trump appointees may use as eager, active collaborators in those partisan efforts to undermine the new administration’s policy agenda. The potential implications extend far beyond the fate of the 100-day removal moratorium itself.
Keywords: immigration, enforcement, prosecutorial discretion, enforcement discretion, priorities, deportation, removal, moratorium, rule of law, separation of powers, DACA, DAPA, deferred action, judicial decision-making, judiciary, judges, Biden, Trump, entrenchment, strategic entrenchment
JEL Classification: K 1, K37, K41
Suggested Citation: Suggested Citation