- The Washington Times - Tuesday, January 26, 2021

A federal judge has dealt the first legal blow to President Biden’s expansive executive actions, putting a hold Tuesday on Mr. Biden’s attempt to impose a 100-day pause on most deportations.

Judge Drew B. Tipton said the Biden team didn’t give a good enough reason for the pause, and failed to show how it would help achieve the stated goal of overhauling the asylum system.

He ruled it was not the result of “reasoned decision-making,” and so it violated the Administrative Procedures Act, a largely unknown but powerful law that governs how a president and his team can carry out their policy objectives.

“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,” wrote Judge Tipton, a Trump appointee to the court in southern Texas.

He issued a temporary restraining order.

The ruling was striking in that it harnessed the same legal hurdle that repeatedly tripped up the Trump administration, too.

President Trump saw his attempts to rewrite DACA, to reform the asylum system and to make legal immigrants more self-sufficient all fall victim to procedural laws like the APA.

Tuesday’s ruling came in a case brought by Texas Attorney General Ken Paxton, who sued Friday, sparking a feverish five-day legal battle.

Mr. Biden had promised the deportation pause during the campaign, saying he wanted time to figure out who had been put in the pipeline during the Trump administration.

His acting Homeland Security secretary issued a memo on the first day of the new administration implementing the pause, saying that only migrants deemed national security risks or new border crossers could still be ousted.

The Center for Immigration Studies calculated that about 85% of migrants in custody would be deemed not deportable under the policy.

Texas argued in court that the administration had already begun releasing some migrants from custody under the deportation pause. The Justice Department said those releases were in the works already — but said releases might have to happen to make room for new arrestees at the border.

The Justice Department’s lawyer also told the judge he didn’t have the power to interfere in deportation decisions, saying that to do so would be to trample on the executive branch’s powers.

Mr. Paxton had countered that immigration law calls for deportations to take place within 90 days, and the 100-day pause on its face breaks that law.

“The court’s decision to stop the Biden administration from casting aside congressionally enacted immigration laws is a much-needed remedy for DHS’s unlawful action,” Mr. Paxton said in a statement after Tuesday’s ruling.

He suggested he’s ready to file more lawsuits over “unlawful and unconstitutional actions of President Biden and his administration.”

The deportation pause was issued on Inauguration Day by acting Homeland Security Secretary David Pekoske.

On Capitol Hill, senators took a step Tuesday toward confirming Mr. Biden’s pick to lead the department, Alejandro Mayorkas. The Homeland Security and Governmental Affairs Committee gave its approval on a 7-4 vote.

Democrats are enthusiastic about Mr. Mayorkas, who served as deputy secretary in the latter years of the Obama administration, and brings a wealth of experience to the job.

Republicans were torn over the pick, pointing to the inspector general’s report that accused Mr. Mayorkas of ethical lapses stemming from political interference on behalf of well-connected Democrats during his time running U.S. Citizenship and Immigration Services, one of the department’s agencies.

“This simply can’t be ignored,” said Sen. Ron Johnson, Wisconsin Republican and chairman of the panel.

But Sen. Rob Portman, Ohio Republican, said the calculation was more complicated.

While the inspector general’s investigation troubled him, he said in his dealings he found Mr. Mayorkas to be willing to listen to Republicans, and “as compared to other officials in the Obama administration, actually more toward the middle.

The overriding issue, though, was that Homeland Security has been adrift, without a confirmed secretary or much of its other top leadership, for years.

“He’s going to be confirmed no matter what we do here this morning,” Mr. Portman said. “The question is how quickly does he get in place.”

Had the GOP retained control of the Senate, Mr. Mayorkas’s fate might have been more in doubt. But Democrats now control the chamber and are determined to give Mr. Biden his team.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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