The Supreme Court is in disarray over a rogue Trump judge in Texas

Drew Tipton, a Trump appointee to a federal court in Texas, has spent just over two years on the bench. In those two years, he has repeatedly handed down decisions blocking the Biden administration’s immigration policies that were rooted in highly dubious legal arguments.

And because federal trial court procedures in Texas frequently permit litigants to choose which judge will hear their case, Texas’s Republican attorney general often chooses Tipton to hear challenges to Biden administration policies. At least when it comes to immigration, Tipton has acted as a reliable partisan.

On Tuesday, the Supreme Court had to confront this set of circumstances head-on.

The Court heard an appeal of Tipton’s decision in a case known as United States v. Texas. Tipton’s order in the case, which he handed down in July, effectively stripped Secretary of Homeland Security Alejandro Mayorkas of his statutory authority to set enforcement priorities for Immigration and Customs Enforcement (ICE), the agency that enforces immigration laws within US borders.

Tipton’s decision invalidated a memo Mayorkas issued in September 2021, which instructed ICE to prioritize undocumented immigrants who “pose a threat to national security, public safety, and border security and thus threaten America’s well-being” when making arrests or otherwise enforcing immigration law.

Based on the justices’ comments at Tuesday’s argument, it is likely that a majority of the Court will ultimately vote to reverse Tipton — potentially by a lopsided margin. But it is unlikely that they will do much to prevent judges like Tipton from tossing a wrench into the Biden administration’s gears in the future.

Tipton claimed that Mayorkas’s enforcement priorities are invalid because federal law requires the government to detain a fairly large number of undocumented immigrants. But, as Chief Justice John Roberts said at one point in the argument, “it is impossible for the executive to do” what Tipton ordered it to do. The government simply doesn’t have the resources and manpower to arrest every single immigrant who falls within Tipton’s order.

That said, several of the justices spent a surprising amount of time taking shots at US Solicitor General Elizabeth Prelogar, the Biden administration lawyer arguing against Tipton’s decision, for a fairly radical argument she made in her brief. That argument seeks to diminish the power of judges like Tipton to singlehandedly sabotage a federal policy. But Roberts, along with Justices Brett Kavanaugh and Ketanji Brown Jackson, all appeared openly hostile to this argument. And only one justice, Neil Gorsuch, seemed to fully embrace it.

The bottom line, in other words, is that the Court is likely to reverse Tipton’s order in the Texas case and restore Mayorkas’s command and control over ICE. At the same time, the Court appears unlikely to go much further or to take any immediate action that will prevent conservative litigants from seeking out judges like Tipton who can be relied upon to short-circuit policies created by Democratic administrations.

Tipton’s decision is ridiculous

Under a doctrine known as “prosecutorial discretion,” law enforcement agencies and their leaders have broad authority to decide when not to enforce a particular law. A traffic cop, for example, may pull someone over for speeding but decide to let them off with a warning. Or a local prosecutor may decide that they won’t bring charges against people who commit minor marijuana offenses.

The Supreme Court, meanwhile, has repeatedly warned judges not to interfere with these sorts of non-enforcement decisions. As the Court held in Heckler v. Chaney (1985), “an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.” This principle, the Court added, “is attributable in no small part to the general unsuitability for judicial review of agency decisions to refuse enforcement.”

Mayorkas’s memo is an exercise of prosecutorial discretion. He urges ICE agents to focus their work on certain violators of federal immigration law, such as “a noncitizen who engaged in or is suspected of terrorism or espionage” or noncitizens who committed serious crimes. At the same time, the memo suggests that other undocumented immigrants, such as people of an “advanced or tender age” or those who have a “lengthy presence in the United States,” are less likely to be appropriate targets for enforcement.

Nevertheless, Tipton claimed that two federal statutes — one of which provides that the government “shall take into custody” immigrants who’ve committed certain offenses, and another saying that the government “shall remove” immigrants within 90 days after an immigration proceeding orders them removed — trumps the government’s power to exercise prosecutorial discretion and effectively makes detention of certain immigrants mandatory.

This decision was wrong. The Court has long held prosecutorial discretion is so “deep-rooted” that it can overcome a legislative command stating that law enforcement officers “shall arrest” a particular class of persons. Indeed, over a century ago, in Railroad Company v. Hecht (1877), the Court held that “as against the government, the word ‘shall,’ when used in statutes, is to be construed as ‘may,’ unless a contrary intention is manifest.”

One of the core reasons why prosecutorial discretion exists is that law enforcement agencies will always have what Kavanaugh referred to as “resource constraints.” Unless Congress agrees to fund legions of law enforcement officers, and implement a draconian surveillance state, agencies like ICE will never have the personnel, detention space, and other assets that they would need to arrest every single person who violates a law within the agency’s jurisdiction.

And Congress certainly has not done so here. As the Justice Department explained in a 2014 memo, “there are approximately 11.3 million undocumented aliens in the country,” but Congress has only appropriated enough resources to “remove fewer than 400,000 such aliens each year.”

Indeed, as Prelogar told the Court, “it is impossible for DHS to comply” with every provision of federal law stating that a certain immigrant “shall” be detained. If Tipton’s order were to stand, “DHS would be under a judicially enforceable obligation to take enforcement action against whomever it first encounters on the ground who might be subject to one of these provisions,” and would not have the personnel or resources to focus on immigrants who committed serious crimes like murder or sex offenses.

This argument appeared to persuade a majority of the Court, including Republican appointees like Roberts and Kavanaugh. Roberts repeatedly brought up the fact that it is “impossible” for DHS to comply with Tipton’s order. And Kavanaugh told Texas Solicitor General Judd Stone that “there is a tradition of reading statutes against the backdrop of prosecutorial discretion” because “there are never enough resources — or almost never enough resources — to detain every person who should be detained.”

The Court is unlikely to stop judges like Tipton from making trouble in the future

At least for now, however, the Court appears unlikely to do anything to prevent rogue judges from handing down decisions in the future that sabotage policies those judges disagree with. Indeed, Prelogar spent much of her argument time being attacked for an argument in the Justice Department’s brief that would have permanently diminished individual judges’ power to block federal policies.

When a federal court determines that a policy set by a presidential administration is unlawful, it will often “vacate” that policy — effectively declaring that policy invalid on a nationwide basis. This ability to vacate federal policies gives enormous power to judges like Tipton because it allows them to singlehandedly put such a policy on hold until a higher court intervenes.

Of course, court orders invalidating federal policies on a nationwide basis can also benefit Democrats when a Republican controls the White House. As a practical matter, however, the Supreme Court’s GOP-appointed majority has not treated such orders in an evenhanded manner. It is noteworthy that the Supreme Court refused the Justice Department’s request to intervene against Tipton last July, even though the Court was often swift to intervene when lower court judges vacated conservative policies during the Trump administration.

Lower courts have found this power to vacate federal policies within a statute which says that a court should “set aside” a federal agency’s action that it deems to be unlawful. But Prelogar argued that this reading of the statute is incorrect.

The words “set aside,” Prelogar claimed in the Justice Department’s brief, “means that courts disregard [illegal policies] when deciding the cases before them, not that they vacate the statutes.” When a court determines that a policy is illegal, it should simply hold that it does not apply to the parties before the court, rather than eliminating that policy on a nationwide basis. Prelogar’s argument largely tracks a novel argument raised by University of Virginia law professor John Harrison in a 2020 law review article.

Without getting into the details of this argument, which are extraordinarily technical and which received only a few pages worth of attention in the Texas parties’ briefs, it’s safe to say that Prelogar is calling for a radical shift in how the lower courts approach federal policies they deem unlawful.

As Roberts joked, the United States Court of Appeals for the District of Columbia Circuit — which he and several of his colleagues used to serve on — would sometimes vacate federal policies “five times before breakfast.” And the DC Circuit, which hears a steady stream of challenges to federal agency actions, has an unusual amount of expertise on this area of the law.

And yet, it’s not hard to see why Prelogar seeks such a radical change from the Supreme Court. Just six days after President Joe Biden took office, Tipton handed down his first order blocking a Biden administration policy — that one invalided the administration’s decision to pause deportations for 100 days while the new administration was getting a handle on how it wanted to approach immigration enforcement. The Texas attorney general’s office routinely obtains orders halting Biden administration policies, in no small part because Texas federal courts allow them to handpick which judges will hear most of these cases.

This practice is unlikely to end until the Supreme Court does something to shut it down.

And yet, Prelogar’s proposed solution appeared to throw the Court into disarray and to divide the Court in unfamiliar ways. Roberts, Kavanaugh, and Jackson — all of whom served on the DC Circuit — took turns tearing into Prelogar’s proposal, sometimes in a mocking tone. Meanwhile, archconservative Justice Neil Gorsuch, who called for limits on individual judges’ power to block federal policies during the Trump administration, appeared sympathetic to Prelogar’s arguments.

Even Justice Samuel Alito, the Court’s most reliable Republican partisan, conceded that the question of whether a single judge can vacate a federal policy “does seem to me like a pretty big issue” — although he questioned whether it would be appropriate for the Court to rule on this issue after receiving only a few pages of briefing on it. Justices Sonia Sotomayor and Amy Coney Barrett also made comments suggesting that they take this issue seriously, but believe that it should be resolved in a future case with more robust briefing.

So the good news for the Biden administration is that several members of the Court, at least, appear open to ideas that might limit lower court judges’ power to singlehandedly block federal policies. It is far from clear, however, whether Prelogar’s proposal, or any other, will receive five votes when it is presented to the Court in a future case.

And, in the meantime, judges like Tipton will most likely be allowed to act as agents of chaos.