Judicial Illiberalism: How Captured Courts Are Entrenching Trump-Era Immigration Policies (Full Version)
Bender's Immigration Bulletin, Vol. 27, No. 22, at 1971-79 (Nov. 15, 2022)
10 Pages Posted: 29 Nov 2022
Date Written: November 15, 2022
When President Joe Biden took the oath of office, expectations ran high for major changes in immigration policy. While Biden’s predecessor had implemented the most far-reaching anti-immigration program in nearly a century, the Trump presidency never garnered strong public or congressional support for its immigration restrictionist initiatives. Even as xenophobia rapidly took hold among many within the Republican Party’s political, media, and legal elites, polls steadily found that substantial majorities of Americans opposed the Trump immigration agenda. With this reservoir of popular support, Biden forcefully pledged as a candidate not only to take “urgent action to end the Trump Administration’s draconian policies,” but also to restart “the work of building a fair and humane immigration system.” And within hours of assuming office, his administration began dismantling Trump’s legacy.
More than one-and-a-half years later, the Biden administration’s progress in rolling back Trump’s anti-immigration legacy has been decidedly uneven. While some of the responsibility lies squarely with the White House itself, no less disquieting have been the ways in which right-wing politicians have enlisted a phalanx of reliably partisan Trump-appointed judges to actively subvert Biden’s immigration agenda. Together with other conservative judges, these Trump appointees have demonstrated an eagerness to perpetuate the anti-immigration policies of the candidate who voters decisively rejected in 2020, often deploying irregular methods and suspect legal reasoning to do so. The manner in which these judicial appointees have kneecapped the Biden immigration agenda offers a revealing window into how a federal judiciary increasingly captured by conservative extremists may continue to operate as an active, enthusiastic collaborator in efforts to entrench illiberal, antimajoritarian power and right-wing policies, across a range of substantive domains, for years to come.
Keywords: immigration, enforcement, discretion, priorities, deportation, removal, moratorium, separation of powers, DACA, deferred action, judicial decision-making, judiciary, judges, Biden, Trump, entrenchment, refugees, asylum, Title 42, public health, MPP, Remain in Mexico, shadow docket, illiberalism
JEL Classification: K1, K37, K41
Suggested Citation: Suggested Citation