During the Trump Administration, Democratic Attorneys General used the Administrative Procedure Act (APA) to delay Trump policies pending satisfaction of requirements for notice and comment periods. Even though President Barack Obama did not satisfy APA conditions in imposing original rules, the Supreme Court enforced such procedures to reverse prior orders. During that litigation over the Trump executive orders, I repeatedly noted that the Democratic challengers in court were making arguments that would likely used against the next Democratic president in seeking to quickly undo Trump’s orders. That has now come to past. When Biden took power, he immediately did what Trump did in taking unilateral acton without APA notice. District Court Judge Drew B. Tipton ordered this week that the directive from acting Homeland Security Secretary David Pekoske was not in apparent compliance with the same law.
Under federal law, the attorney general has 90 days after an order of removal to have the individual deported. Texas Attorney General Ken Paxton argued that Biden’s100-day pause violated the Administrative Procedure Act. Judge Tipton agreed
“The Court finds that, by ordering a 100-day pause on all removals of aliens already subject to a final order of removal, it appears that the January 20 Memorandum is clearly not in accordance with, or is in excess of, the authority accorded to the Attorney General pursuant to 8 U.S.C. § 1231(a)(1)(A).”
This is just an initial salvo on the issue since 100 days will run before much litigation unfolds. However, it is a warning shot that Democratic litigators have spent four years challenging the right of a president to make quick and unilateral reversals of prior enforcement policies or practices.
When Trump pledged sweeping and unilateral action, there was a chorus of objections that it was unlawful and improper. Now, many are calling for Biden to engage in the same unilateral actions in circumvention of Congress, including most recently Majority Leader Chuck Schumer. I was critical of Trump environmental policies and favor the priorities of Biden on the environment. Indeed, I am delighted by many of his new policies. However, the sudden shift on such unilateral action in Washington is incredible even in a city where hypocrisy is treated as a bona fide occupational qualification.