Rule by executive order isn’t as easy as it sounds.
It took six days after the inauguration for a judge to issue the first national injunctions against a Biden administration executive order. U.S. District Judge Drew Tipton, a Trump-appointee out of Texas, held up a Biden order pausing deportation. Those on the American left decry this as a partisan attack on the new administration; those on the right point to the weaponization of national injunctions by Democrat-appointed judges during the Trump administration to hamstring a president they loathed.
More broadly, though, such injunctions are a corrective tactic in the back-and-forth struggle between the branches. Biden, and before him Trump and Obama, have tried to expand the scope of the executive branch, and opponents are using the judicial branch to reverse the trend. Coupled with the Administrative Procedure Act, a post-World War II law also aimed at reigning in the growing administrative state, executive orders will become less and less useful as a mechanism to circumvent Congress.
Biden’s First Case
On his first day in office, Biden commanded a 100-day pause to deportation. This halt applied specifically to non-citizens who already had a final order of removal issued by an immigration judge.
The only exceptions in the order concerned terrorists, those who entered after November 1st, 2020, those who waived any rights to remain, and those specifically required to be removed by law. Despite the order’s highlighting of Public Safety as a priority (along with National Security and Border Security), the order does not exclude aggravated felons.
Both felons and non-felons would stay at least another 100 days. It was unknown whether Immigration and Customs Enforcement (ICE) had the capacity to house another 100 days of inventory under COVID-19 housing restrictions, or whether some of those who have already been ordered deported will be released. What was clear is the administration’s intention, where possible, to forgive their trespasses by requiring:
“assessments of alternatives to removal including, but not limited to, staying or reopening cases, alternative forms of detention, custodial detention…temporary deferred action, or other appropriate action.”
This edict didn’t survive its first contact with the courts. Judge Drew Tipton, a federal district judge in Texas, issued an injunction against enforcement on two premises. First, laws passed by Congress always take precedence over executive orders, and the law directs immigrants to be removed within 90 days. Administrative discretion can’t contravene written law. While likely the federal government does not succeed at hitting the 90-day limit each time, that’s far different than instituting a policy of willful disregard of the statute.
Second, though, Tipton refers to the Administrative Procedure Act (APA). This more interesting piece sets the tone for numerous future actions to reign in executive power. The APA requires a process for rule-making that includes notification to the public and mechanisms for public comment before rules are enacted. The APA also allows judicial review, with clear requirements that rules be reasonable, evidence-based, and neither arbitrary nor capricious.
The Trump administration mostly ignored these requirements in their first days. While Republicans and Trump roundly criticized the Obama administration for attempting to rule by executive fiat, the 45th president attempted to do much the same thing. Months and sometimes years passed before the Trump administration broke the code and learned to meet the requirements of federal rule-making.
Many of Biden’s flurry of executive orders will meet the same fates.
How we got here
The history of the United States reflects a centuries-long struggle to divide power between the branches of government, plus between the federal government and the states. The country’s first constitution, the Articles of Confederation, didn’t even have a chief executive; states were jealous of their sovereignty and reluctant to install a new king.
The new structure proved unworkable; while states retained the bulk of their sovereignty it was too difficult to get anything done. Eventually, the founders crafted the Constitution as we know it with a system of checks and balances to protect the states and the people.
Presidents, at least after George Washington and the very early days of the republic, have always tried to increase their personal power. For example, Andrew Jackson instituted the spoils system, firing anyone with loyalty to Adams and installing his supporters and cronies throughout the government. This system gave presidents enormous power but promoted corruption. It took nearly fifty years but after waves of scandals and the assassination of President Garfield, Congress reduced appointment power through the Pendleton Act.
Abraham Lincoln engaged in a brazen power grab and usurped Congressional authority by suspending the writ of habeas corpus, allowing arrest without charges. The Supreme Court eventually provided a mild check on this, and Lincoln ultimately received authorization from Congress for further suspensions. Franklin Roosevelt likewise seized wartime power with his internment program, though it took decades for the courts to affirm the wrongness of his actions.
Up until the New Deal, however, concerns about executive branch powers were more often personality-based skirmishes than structural conflicts. With the massive expansion of the welfare state in the 1930s, the power of the administrative state became of increasing concern. In 1946, Congress reacted with the APA to put guardrails on the exercise of administrative power.
Rise of the nationwide injunction
The APA on its own would be insufficient to rein in executive power. Up until recently, agency actions could be challenged in court, but judges generally restricted remedies to the particular injured party. Over the last few decades, though, nationwide injunctions gained steam.
The first true nationwide injunction occurred in 1963 when a federal court prohibited the Secretary of Transportation from applying a new rule to anyone in the country, not just the party in the suit. One source estimates that judges issued an average of 1.5 national injunctions per year from Reagan until the Obama administration.
Obama era policies averaged around 2.5 nationwide injunctions per year. President Obama’s party lost the House in 2010 and the Senate in 2014. As his power to influence legislation waned over his term, he increasingly turned to executive actions, culminating in his “pen and phone” remarks. Trump roundly criticized him for “power grabs” throughout his two terms but doubled down on Obama’s strategy upon his own election.
Trump’s first days in office saw an onslaught of executive orders on hot-button issues. His administration received a staggering 20 nationwide injunctions in his first year and ended with about 55 in total for the four years in office.
The Justice Department had criticized nationwide injunction under every president, Republican or Democrat. The Supreme Court, too, has begun to wonder whether it should take action to limit the power of lower court judges to provide relief outside of the aggrieved parties and outside of their jurisdictions.
Where we go from here
Nationwide injunctions are unlikely to go away. As much as the Justice Department protests, and as much as Supreme Court justices might be ideologically or politically inclined to agree, they will at best put only minor limits around the practice. First, most of the cases in the near future will be brought by conservatives to a 6–3 conservative majority on the court. Under the Trump administration, the Roberts Court often agreed that Trump failed to follow the APA. Even when finding a Trump order permissible on the merits, it never overturned the authority of the judge to issue the injunction. The court will be even less likely to overturn the authority to make injunctions by Republican-appointed judges with whom it generally agrees.
Secondly, more important than political alignment, to limit the power of lower court judges would be to limit the power of the judiciary itself. Nothing in life is static; organizations are either growing or dying. The judicial branch is either gaining or losing power. The Supreme Court is unlikely to participate in its own diminishment.
Ultimately, this situation is for the best. The routine practice of using executive orders to perform end-runs around Congress is a relatively new practice. It requires a new check and balance. Republicans are probably less ideologically inclined towards nationwide injunctions among both plaintiffs and judges, so the number may decrease. Still, though, we will see any substantive or controversial presidential executive order challenged in court to ensure compliance with the APA, which was set up to address executive branch abuse. Expansion of the APA to executive orders through nationwide injunctions simply mirrors the attempted expansion of autocratic rule-making.
Brian E. Wish works as a quality engineer in the aerospace industry. He has spent 29 years active and reserve in the US Air Force, where he holds the rank of Colonel. He has a bachelor’s from the US Air Force Academy, a master’s from Bowie State, and a Ph.D. in Public and Urban Administration from UT Arlington. The opinions expressed here are his own. Learn more at brianewish.com.