Then-President Donald Trump greets Supreme Court Justice Neil Gorsuch ahead of the State of the Union address in the chamber of the US House of Representatives on February 4, 2020, in Washington, DC. | Mario Tama/Getty Images
More than a year after Trump’s defeat, Biden is forced to share power with increasingly partisan judges.
No one has ever elected Matthew Kacsmaryk to anything.
Kacsmaryk, whom former President Donald Trump appointed to the federal bench in 2019, was previously a lawyer for a Christian right law firm. He once claimed being transgender is a “mental disorder” and that gay people are “disordered.” He’s also one of the most powerful immigration officials in the country, having successfully wrested control of much of America’s border policy away from the man Americans elected president in 2020.
With the Supreme Court’s blessing, Kacsmaryk ordered President Joe Biden’s administration to reinstate Trump’s “Remain in Mexico” policy, which requires many asylum seekers who arrive at the United States’ southern border to stay in Mexico while they await a hearing.
Even if you ignore the moral implications of reinstating such a policy, there are good reasons to doubt that the policy is a good use of America’s limited border security resources. And Kacsmaryk’s decision is also unlawful for numerous reasons.
One of the most important reasons is that it upends the balance of power between the president and unelected judges. Reinstating the Remain in Mexico program requires the Mexican government’s cooperation — which means that Kacsmaryk ordered the United States to change its diplomatic stance toward Mexico. And that’s despite decades of warnings from the Supreme Court that judges should be “particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs.”
Kacsmaryk’s decision, and the Supreme Court’s decision to stand with Kacsmaryk against President Joe Biden, is one of the most dramatic examples of the Republican-controlled federal judiciary’s many conflicts with America’s Democratic president. But it’s hardly an isolated incident.
In just four years as president, Trump remade the federal judiciary — all with a big assist from a Senate Republican leader willing to break any norm in order to ensure GOP control of the courts. Trump appointed a third of the Supreme Court and nearly a third of all active appeals court judges. He also peppered federal trial courts with conservative activists like Kacsmaryk, who are eager to overturn some of the most fundamental assumptions of US law.
Nearly one year into Biden’s time in office, the result hasn’t exactly been a bloodbath for his policies — in contrast to the seemingly never-ending array of lawsuits seeking to repeal Obamacare, no federal judge has yet tried to repeal Biden’s major legislative accomplishments such as the American Rescue Plan or the Infrastructure Investment and Jobs Act. But in two areas in particular, immigration and public health, the courts have been unusually aggressive.
Just days after Biden took office, a Trump-appointed judge in Texas relied on highly dubious legal reasoning to block a Biden administration memo pausing most deportations for 100 days. More recently, the same Trump judge, Drew Tipton, relied on similarly dubious reasoning to prevent the administration from setting enforcement priorities for immigration officials.
Meanwhile, the judiciary has done more than virtually any other institution in America to frustrate efforts to control the Covid-19 pandemic. Almost immediately after the Biden administration announced new rules encouraging most workers to get vaccinated, for example, a right-wing panel of the United States Court of Appeals for the Fifth Circuit raced to hand down a procedurally improper order blocking those rules (although that order has since been lifted by a more centrist panel). Trump-appointed judges handed down similar orders blocking a more modest rule requiring many health care workers to be vaccinated.
So, while right-wing judges have not yet launched a wholesale assault on the Biden presidency, they’ve handed down a raft of decisions that endanger the public health and that force some of the most vulnerable people on the planet to live in squalid, often dangerous conditions. And these judges could get even more aggressive in the future.
While judicial sabotage of the Biden administration’s policies has thus far been limited in scope, it’s likely to expand rapidly, and soon. The Supreme Court announced in late October that it will hear West Virginia v. EPA, a case that, at its most extreme, could potentially give the judiciary veto power over every regulation pushed out by any federal agency.
Such a decision would only embolden judges who wish to hobble Biden’s presidency.
Right-wing judges are testing the limits of their power
The federal courts are hierarchical, and they are supposed to be creatures of precedent. If a higher court hands down a legal rule that governs future cases, lower court judges are supposed to be bound by that rule for as long as it is in place — even if the judge disagrees with the rule, and even if the judge thinks that the higher court is likely to overrule it in the future.
For this reason, conservative judges who respect this rule of law are somewhat constrained by existing precedents — whether they are famous cases like Roe v. Wade (1973), or less well-known cases like Mistretta v. United States (1989) or Chevron v. Natural Resources Defense Council (1984), which form the backbone of the modern administrative state.
Republicans did not gain their current supermajority on the Supreme Court until about a week before Biden was elected president. So even if the Court’s new majority is inclined to ignore stare decisis (the principle that courts should be reluctant to overrule previous decisions), it simply hasn’t had time to overrule every precedent that is out of favor within conservative legal circles.
That means that, at least for now, the most aggressive decisions undercutting President Biden are being handed down by judges who do not feel constrained by precedent, or who want to nudge the Supreme Court into overruling past opinions by handing down decisions that are inconsistent with those opinions and that need to be reviewed on appeal.
As mentioned above, these most aggressive decisions are concentrated in two policy areas — immigration and public health — so let’s take a quick look at some of the more legally dubious decisions in these two policy spaces.
Tipton v. Biden
Consider both of Judge Tipton’s orders blocking the Biden administration’s immigration policies. Both of these decisions are flawed in the exact same way.
On January 20, 2021, the first day of the Biden presidency, acting Secretary of Homeland Security David Pekoske issued a brief memorandum announcing two temporary immigration policies. Pekoske’s memo ordered a 100-day pause on most deportations, to give the new administration time to “ensure that our removal resources are directed to the Department’s highest enforcement priorities.” It also laid out new interim priorities that should govern immigration enforcement.
Under these interim priorities, immigration enforcement officers were instructed to target non-citizens who pose a threat to national security; undocumented immigrants who entered or attempted to enter the United States on November 1, 2020, or later; and immigrants convicted of an “aggravated felony” who “are determined to pose a threat to public safety.” The memo was explicit that it did not prohibit “the apprehension or detention” of other people unlawfully in the United States, but the Biden administration wanted to shift enforcement resources to the three identified groups.
The legal basis for both of these temporary policy shifts is a doctrine known as “prosecutorial discretion,” which permits law enforcement to set enforcement priorities and even to decide not to enforce a particular law against a specific individual. If you’ve ever been pulled over by a cop and then let off with a warning, you’ve benefited from this kind of discretion.
Under the Supreme Court’s current precedents, moreover, executive branch officials who oversee entire law enforcement agencies also have broad authority to exercise such discretion, and especially in the immigration context. As the Court explained in Arizona v. United States (2012), “a principal feature of the removal system is the broad discretion exercised by immigration officials.” Similarly, the Court held in Heckler v. Chaney (1985) that “an agency’s decision not to take enforcement action should be presumed immune from judicial review.”
One important reason why executive branch officials have such discretion is that law enforcement agencies do not have infinite resources. As the Obama administration explained in a 2014 memo, “there are approximately 11.3 million undocumented aliens in the country,” but the Department of Homeland Security only “has the resources to remove fewer than 400,000 such aliens each year.” So it is inevitable that senior law enforcement leaders will have to make decisions about what kinds of enforcement to prioritize.
The Biden administration wanted to focus these limited resources primarily on immigrants who could threaten public safety. Tipton’s orders ensure that immigration enforcement will be much more arbitrary.
Just as importantly, Tipton’s orders show contempt, not just for the principles announced in decisions like Arizona and Heckler, but for the very idea that, as a lower court judge, he is bound by Supreme Court precedent. But they also reflect a kind of regressive optimism that infuses so many Republican appointees to the federal bench. Sure, the law may permit Biden to liberalize immigration policy today. But, by denying Biden his lawful authority, judges like Tipton might accelerate the day when the Supreme Court strips Biden of a power that was enjoyed by every recent president.
The Fifth Circuit v. Biden
Tipton is an unusually aggressive ideological innovator within the judiciary, but he’s hardly an isolated case. Take the Fifth Circuit’s opinion in BST Holdings v. OSHA, the decision blocking the Biden administration’s rule requiring most workers to either get vaccinated against Covid-19 or be tested weekly for the disease. As I’ve written, there are plausible arguments that this rule exceeds the Department of Labor’s statutory authority, but Judge Kurt Engelhardt’s opinion in BST Holdings largely bypasses these arguments in favor of others that range from implausible to ridiculous.
Engelhardt’s opinion relies heavily on arguments the Trump administration made in mid-2020 that it should not impose additional requirements on workplaces in order to stop the spread of Covid-19. But these arguments are completely irrelevant to the issues at stake in BST Holdings. Whatever their merits might have been in the middle of 2020, vaccines were not available until the final days of the Trump administration, and then only to a select group of people. So the Trump administration never even considered whether to issue a rule encouraging workers to vaccinate.
Similarly, Engelhardt’s opinion interprets federal law in ways that would baffle any reasonably fluent English speaker. At one point, he claims that the Covid-19 virus does not qualify as a “substance” or “agent” that is “toxic or physically harmful” (the Occupational Safety and Health Act of 1970 permits the federal government to issue an “emergency temporary standard” to protect against such dangers in the workplace).
Engelhardt’s most aggressive argument suggests that Congress itself lacks the authority to pass a new law requiring workplace vaccination. “The Mandate likely exceeds the federal government’s authority under the Commerce Clause because it regulates noneconomic inactivity,” he writes, adding that “a person’s choice to remain unvaccinated and forgo regular testing is noneconomic inactivity.” To justify this argument, Engelhardt cites the Supreme Court’s decision in NFIB v. Sebelius (2012), which held that Congress could not order people to purchase health insurance (although it could impose higher taxes on the uninsured).
But Engelhardt massively overreads NFIB. That decision limited Congress’s power to “compel individuals not engaged in commerce” to take a particular action. But the Biden administration’s workplace vaccine mandate doesn’t target people who are “not engaged in commerce.” It targets workers and their employers. Performing labor, in return for pay — and hiring others to do so — is a form of commerce.
There was a time when the Supreme Court denied that most workers participate in commerce. That denial formed the basis of the Court’s decision in Hammer v. Dagenhart (1918), which struck down a federal ban on child labor. But Hammer was overruled more than 80 years ago! Even on the current Supreme Court, only Justice Clarence Thomas has thus far endorsed a return to this long-dead regime.
So, at the very least, Engelhardt’s opinion endangers workers and frustrates efforts to quell the Covid-19 pandemic. And the most radical parts of that opinion could endanger very basic protections for workers and children.
More broadly, lower court judges are playing with ideas that are not the law and that are soundly rejected by all but the most reactionary elements of the legal profession. And yet, with the judiciary now led by the most conservative Supreme Court since the early years of the Franklin Roosevelt administration, there’s no guarantee that the federal judiciary as a whole will not embrace at least some of these ideas.
No one is providing adult supervision of the most reactionary judges
Of course, if the Supreme Court wanted lower-court judges to stop ignoring precedents that permit President Biden to govern, it could intervene to stop them from doing so. Instead, it has rewarded many of the most aggressive conservative innovators within the judiciary.
Recall Judge Kacsmaryk’s order requiring the Biden administration to reinstate Trump’s Remain in Mexico policy. There are many flaws in that order, but the most significant is that it runs roughshod over many decades of Supreme Court opinions warning against “the danger of unwarranted judicial interference in the conduct of foreign policy.”
When foreign nations negotiate with the United States, they need to know that America’s bargaining position won’t change abruptly because just one of the 1,392 men and women currently sitting as federal judges decides to take issue with that position. And when American diplomats make a promise on behalf of their country, they need to be able to keep that promise.
And yet, in siding with Kacsmaryk over Biden, the Supreme Court effectively abandoned its longstanding practice of deference to the executive on questions of foreign relations. That decision to abandon one of the fundamentals of US separation of powers will only embolden other judges who are trying to decide whether they can get away with ignoring the Court’s precedents.
If anything, the justices are sending loud signals that they want lower court judges to innovate in ways that shift power from the executive to the judiciary. In a few months, the Court plans to hear the West Virginia case, which asks it to revive a long-defunct doctrine known as “nondelegation.” The idea behind this dead-but-dreaming doctrine is that the Constitution places strict limits on Congress’s power to delegate power to agencies. In practice, nondelegation could allow the judiciary to veto any regulation promulgated by any federal agency.
Given these signals from the Supreme Court, some lower court judges are behaving as though the Court has already fully embraced nondelegation. Judge Engelhardt named nondelegation as one of the myriad reasons why he objects to the workplace vaccination rules (that case was transferred to the Sixth Circuit, which dissolved Engelhardt’s order. The case is now pending before the Supreme Court). One judge relied on nondelegation in an opinion blocking federal rules intended to prevent the spread of Covid-19 on cruise ships (that opinion is still in effect, after an appeals court decided not to block it). A panel of two Trump judges and one Reagan judge cited nondelegation as a reason to strike down an eviction moratorium (that the Supreme Court eventually rejected for other reasons).
Yet, if the justices are telling conservative judges that they will suffer no embarrassment if they ignore longstanding Supreme Court precedents, the Biden administration is also doing very little to stand up for itself.
The Biden administration has taken some steps to try to dissolve Kacsmaryk’s order. When the Supreme Court sided with Kacsmaryk over Biden, it claimed to be doing so because the Biden administration didn’t adequately explain why it wanted to end Remain in Mexico. So the administration released a new memo last October giving a more fleshed-out explanation, and it asked the Fifth Circuit to issue a ruling that would allow it to escape Kacsmaryk’s injunction (a right-wing panel of the Fifth Circuit that includes Judge Engelhardt rejected that request in a 117-page opinion dripping with contempt for the Biden administration).
Yet, even as it seeks mercy from hostile Republican appointees, the Biden administration has hardly acted as though it wants to regain its lawful authority over immigration policy. Earlier this month, the administration reached an agreement with Mexico to reinstate Trump’s policy, and it even plans to expand it. Under Trump, the Remain in Mexico policy applied only to Spanish speakers; now it applies to many migrants who don’t even speak the same language spoken by most Mexicans.
Both the Supreme Court and the Biden administration are signaling that there are no consequences — and there won’t even be significant pushback — when revanchist judges defy the law.
If you were a right-wing judge who loathes Joe Biden but who also tends to be more careful than judicial arsonists like Engelhardt, Tipton, and Kacsmaryk, how would you react to this series of events?