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Every 42-year-old Federalist Society careerist a king


A lone hack District Court judge wants to take over federal immigration policy with no legal basis whatsoever, and all of the dudes on the Supreme Court are fine with that:

On Thursday evening, the Supreme Court handed down a brief, 5-4 decision that effectively places Drew Tipton, a Trump-appointed federal trial judge in Texas, in charge of many of Immigration and Customs Enforcement’s (ICE) decisions about which immigrants to target.

The decision was largely along party lines, except that Justice Amy Coney Barrett joined the Court’s three Democratic appointees.

The decision in United States v. Texas is temporary, but the upshot of this decision is that Tipton will effectively wield much of Homeland Security Secretary Alejandro Mayorkas’s authority over how ICE officers prioritize their time for as much as an entire year — and that’s assuming that the Biden administration ultimately prevails when the Court reconsiders this case next winter.

At issue in this case is a perfectly standard decision Mayorkas made last September. Federal law provides that the secretary of homeland security “shall be responsible” for “establishing national immigration enforcement policies and priorities.” Pursuant to this authority, Mayorkas issued a memo to ICE’s acting director, informing him that the agency should prioritize enforcement efforts against undocumented or otherwise removable immigrants who “pose a threat to national security, public safety, and border security and thus threaten America’s well-being.”

Then-secretaries of homeland security issued similar memos setting enforcement priorities in 2000, 2005, 2010, 2011, 2014, and 2017.


This is not a close case, at least under existing law. Not only is there a federal statute that explicitly gives Mayorkas, and not Tipton, the power to establish “national immigration enforcement policies and priorities,” but Tipton’s order is also inconsistent with a legal doctrine known as “prosecutorial discretion.” That doctrine gives the executive branch discretionary authority to determine when to bring enforcement actions against individuals who allegedly violated the law.


Now, the best-case scenario for Mayorkas — and for the rule of law in the United States — is that the Supreme Court will treat Tipton’s order much like it treated Kacsmaryk’s, permitting an unlawful seizure of the Biden administration’s authority to remain in effect for only months, instead of permanently.

The “best part” is that if the Court does finally overturn Tipton’s Turning Point USA speech next year, this will be used as an example by C-list hack columnists to illustrate that the Court isn’t controlled by partisan hacks.

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