A federal judge presiding over a major legal challenge to President Joe Biden’s immigration policies lashed out Monday at Justice Department attorneys, accusing them of trying to rush him into making a key decision in the case.
U.S. District Judge Drew Tipton castigated federal government lawyers for declaring that they planned to seek emergency relief from an appeals court by 2 p.m. Central Time if he did not rule by then on a request to stay an injunction he issued last week prohibiting the administration from continuing to use immigration enforcement priorities rolled out shortly after Biden’s inauguration in January.
“Whose idea was it to impose a 2 p.m. deadline on the court?” Tipton asked, repeatedly demanding to know who at the Justice Department decided to tell him that they’d go to the 5th Circuit Court of Appeals at that hour if he hadn’t ruled on the stay request.
Adam Kirschner, the DOJ Civil Division attorney speaking for the federal government at the video hearing, didn’t answer Tipton directly.
“This is the view of the United States,” Kirschner said. “I can’t speak to internal deliberations. It shows the urgency that we have and the great irreparable harm posed by the injunction.”
Tipton, an appointee of former President Donald Trump, wasn’t satisfied with that answer.
“Who’s idea was it?” he demanded. “Were you involved in it?”
Kirschner said that as “counsel of record” in the case, he was part of those discussions. But he declined to name others for the judge, saying that would divulge privileged information about the department's work.
Tipton pointed out that he had scheduled a hearing on the case for 3:15 p.m. Central Time Monday and he said trying to force the court’s hand just before that hour was bad form. “It’s not a good look … to have a hearing set for 3:15 to address these issues and then to get a deadline,” the judge complained.
Kirschner said the Justice Department wanted to get Tipton’s injunction lifted as soon as possible and that the department was concerned that waiting until after the scheduled hearing would not leave it enough to time to seek emergency relief from the 5th Circuit on Monday. The Justice Department filed its initial appeal of Tipton's order on Friday, just hours after his ruling.
“This was not an attack at you or an attack at the court,” Kirschner said. “We thought if we were to wait until after the hearing it would be another day lost.”
The judge eventually relented, but not before again expressing his displeasure. “That did not make my week,” he said.
The courtroom drama came as Biden's immigration policy objectives are not only encountering opposition in Congress but the rocky prospect of a judicial terrain brimming with conservative jurists.
Earlier this year, Tipton blocked a 100-day deportation moratorium Biden imposed after he was sworn in. And earlier this month, another judge ordered the administration to reimpose Trump's controversial remain-in-Mexico policy for asylum seekers. Late Friday, Supreme Court Justice Samuel Alito stayed that order until Tuesday night as the justices consider the administration's request for relief.
During the remainder of Monday's nearly hour-long hearing, Tipton sparred with the government on other topics, chiefly about interpretation of the preliminary injunction he issued last week in the suit brought by the states of Texas and Louisiana. The suit claims that in directives issued last January and February, the Biden administration defied Congress by effectively declaring that certain immigrants who entered the U.S. illegally would not be detained despite criminal records.
The Biden administration claims Congress’ mandate for detention involving certain types of crimes applies only to immigrants placed in formal deportation proceedings. However, Tipton ruled last week that Congress’ direction applies to any immigrant encountered by Border Patrol or Immigration and Customs Enforcement agents.
The Justice Department has argued that Congress hasn’t appropriated sufficient funding to detain every immigrant with the kinds of criminal records mentioned in the statute. But Texas and Louisiana dispute that and contend the administration isn’t using the so-called bed space it has.
Kirschner said the judge’s ruling would have a major impact on immigration enforcement by wiping out the existing enforcement guidelines.
“This injunction will cause public safety harm. It will cause harm to the country,” the DOJ attorney said. “The injunction completely upends the entire system the agency is operating under.”
However, Tipton argued that the federal government’s response to his order was overly alarmist. He asked Kirschner if the injunction required that the Department of Homeland Security deport anyone.
“No, your honor,” Kirschner replied.
Tipton described his ruling as a “negative injunction” against the existing policy and said the government’s suggestion that he was unleashing chaos was off-base. “I can’t imagine a circumstance where I would order a detention … I just can’t,” he said. “I’m not micromanaging DHS.”
While standing by his legal interpretation, Tipton did modify a requirement he imposed on the federal government to prepare reports on how many immigrants with criminal records it was detaining and releasing. He delayed the date for the filing of the first report from September until October and said he’s only seeking information DHS has readily available.
The judge also said he shouldn’t have made those reporting requirements part of his injunction ruling last week, but should have issued them separately as a way to seek information for the suit as it moves forward.
“In retrospect, I wish I’d put them in a different order,” Tipton said.
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