Charlie Savage, Maggie Haberman, and Jonathan Swan recently reported in the New York Times that:
[W]hile acknowledging that lawsuits would arise to challenge nearly every one of [Trump’s planned immigration enforcement initiatives, Stephen Miller] portrayed the Trump team’s daunting array of tactics as a “blitz” designed to overwhelm immigrant-rights lawyers.
“Any activists who doubt President Trump’s resolve in the slightest are making a drastic error: Trump will unleash the vast arsenal of federal powers to implement the most spectacular migration crackdown,” Mr. Miller said, adding, “The immigration legal activists won’t know what’s happening.”
I certainly hope that open-borders activists, both with legal advocacy groups and within the federal judiciary itself, would not be successful in utilizing “lawfare” to block urgently needed, constitutional and congressionally authorized immigration enforcement initiatives. But, in order not to be mugged by reality, we need to keep in mind Shakespeare’s admonition that “what’s past is prologue”.
Shock and Awe
As Sean Hannity reported a few days after President Trump’s inauguration in 2017:
It is only day five of the Trump administration, and the commander-in-chief is already launching a shock and awe campaign against the Washington establishment.
President Trump is not wasting any time enacting his agenda. He is following through on the pledge he made on the campaign trail and in his inaugural address: The days of all talk and no action are over. In fact, just hours after his swearing-in on Friday as the 45th president of the United States, Trump immediately took action to undo the damage left behind by President Obama.
Washington Post reporters Philip Rucker and Robert Costa wrote shortly after that:
[Senator and Attorney General designate Jeff] Sessions helped devise the president’s first-week strategy, in which Trump signed a blizzard of executive orders that begin to fulfill his signature campaign promises — although Sessions had advocated going even faster.
The senator lobbied for a “shock-and-awe” period of executive action that would rattle Congress, impress Trump’s base and catch his critics unaware, according to two officials involved in the transition planning.
In a less-flattering depiction, historian Douglas Brinkley stated that “This is definitely bizarre, rapid-fire presidential policy making[.] It really is a ‘shock and awe’ strategy that every day there’s a new, radical initiative.”
It turns out, unfortunately, that the real “shock and awe” campaign was the one launched by advocacy groups and their fellow-traveling federal judges to block the Trump administration’s immigration initiatives in court.
When I served as a deputy general counsel at the Department of Homeland Security in the Trump administration, I worked on many immigration regulatory and non-regulatory initiatives. I found to my dismay that pretty much all of them were challenged on legally specious grounds, with many quickly enjoined by federal court order and, like light entering a black hole, never to escape. I once remarked in bemusement that to my surprise no one had yet sued over one such program. Jinx! — a lawsuit was filed the next day.
It was not supposed to be this way. What happened? Do all new administrations suffer such shocking and awful legal setbacks? The answer appears to be no. According to decades’ worth of studies compiled Bethany Davis Noll, litigation director at the Institute for Policy Integrity, federal agencies have historically prevailed in about 70 percent of the legal challenges to their regulatory actions. But Noll’s study reviewing 278 Trump-era agency actions (48 involving immigration) found that federal agencies prevailed only 23 percent of the time.1 And she found that the Trump administration’s immigration policy win rate was only 10 percent (five out of 48 cases).
What about appeals? Noll reported that:
[O]ut of the 252 cases that agencies lost in a lower court, agencies appealed … 38% of the losses… . did not appeal 50% … [a]nd in another 12% … withdrew the challenged actions … .
Of the appeals that the government took, agencies lost on appeal 38% of the time… . Agencies won reversal … in 12% … [and] another 48% … were pending.
She also found that:
[T]he win-loss rate did not get progressively better as agencies issued rules [during the Trump administration]. [W]hen looking at the date each rule came out compared to the success rate in court, the data shows that after climbing to 25% in the spring of 2019, the aggregate win rate had dropped down again by the end of the term to 23%.
Republican Judges in Name Only?
Noll argued that “the data do not support the charge that the [Trump administration’s] low win rate is due to ‘activist judicial rulings’” and that “judicial ideology does not explain the overall loss rate”. She stated that “past studies have consistently found that judicial partisan affiliation has a significant impact on case outcomes in judicial review over agency decisions” and that “[n]o study has ever found that a[nother] presidential administration los[t] at this high of a rate in front of judges that are partisan-aligned with the president.”
Using the “affiliation of the president who nominated the judge as a proxy for the ideology of the reviewing judge”,2 Noll found that agencies in the Trump era won at a rate of 16 percent before Democratic-appointed judges as compared to 45 percent before Republican-appointed judges. She also noted that “Agencies were not guaranteed to win cases even when there were Trump-appointees … . Out of all the cases where either the district court judge was appointed by President Trump, or at least one of the panel members was appointed by Trump, agencies won 23 cases and lost 23”.3
I believe that, to a large extent, the data that Noll presented is simply the result of the Trump administration’s “pushing the envelope” — not as to what was statutorily or constitutionally permissible, but as to the boldness of its immigration enforcement initiatives as compared to those of prior recent administrations, Democrat and Republican alike.
Take the Remain in Mexico (RIM)/Migrant Protection Protocols (MPP) program, for example. In 1996, the Illegal Immigration Reform and Immigrant Responsibility Act granted the executive branch the explicit power to:
In the case of an alien [who is an applicant for admission not clearly and beyond a doubt entitled to be admitted and who is not a crewman or stowaway and has not been placed into expedited removal proceedings] who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States, the [Secretary of Homeland Security] may return the alien to that territory pending a [removal] proceeding [in immigration court].
Yet, the Clinton, George W. Bush, and Obama administrations never widely used this power. As the Supreme Court noted in its 2022 decision in Biden v. Texas, “Prior to the initiation of MPP, [DHS] and its predecessor agency had ‘primarily used [the power] on an ad-hoc basis to return certain Mexican and Canadian nationals’ arriving at ports of entry.” During the Trump administration, DHS decided to operationalize the power on a large scale. On December 20, 2018, DHS Secretary Kirstjen Nielsen proclaimed that “Today we are announcing historic measures to bring the illegal immigration crisis under control.” Secretary Nielsen further stated that:
Aliens trying to game the system to get into our country illegally will no longer be able to disappear into the United States, where many skip their court dates. Instead, they will wait for an immigration court decision while they are in Mexico. “Catch and release” will be replaced with “catch and return.” In doing so, we will reduce illegal migration by removing one of the key incentives that encourages people [to take] the dangerous journey to the United States in the first place. This will also allow us to focus more attention on those who are actually fleeing persecution.
The following month, she informed DHS’ immigration components that they “will begin implementation … on a large-scale basis to address the migration crisis along our southern border”.
As I have concluded, RIM/MPP was wildly successful, in a very real sense being the closest thing we had to a silver bullet to bring the border under control (prior to the arrival of the Covid-19 pandemic, at which point DHS carried out its obligations to protect the public health under Title 42 by expelling aliens outside of the strictures of the INA). However, until Covid, the MPP was truly the MVP of border enforcement. Federal district court judge Matthew Kacsmaryk concluded that:
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DHS stated that … “MPP has been an indispensable tool in addressing the ongoing crisis at the southern border and restoring integrity to the immigration system.”
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Specifically, DHS found “[s]ince a recent peak of more than 144,000 in May 2019, total enforcement actions [along the southern border] … have decreased by 64% through September 2019.”
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Moreover, DHS found “Border encounters with Central American families — who were the main driver of the crisis and comprise a majority of MPP-amenable aliens — have decreased by approximately 80%.”
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[“]DHS has observed a connection between MPP implementation and decreasing enforcement actions at the border — including a rapid and substantial decline in apprehensions in those areas where the most amenable aliens have been processed and returned to Mexico pursuant to MPP.”
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“[A]liens without meritorious claims — which no longer constitute a free ticket into the United States — are beginning to voluntarily return home.”
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DHS concluded its review of MPP and found it to be a “cornerstone” of … efforts to restore integrity to the immigration system[.]
Of course, Human Rights Watch proclaimed that:
Since the start of [RIM] asylum seekers returned to Mexico have been put at risk of kidnapping, extortion and rape; have been denied access to basic services like health care and education; and have had their right to seek asylum in the United States systematically violated … . [RIM] was a fundamental part of the Trump administration’s efforts to eviscerate the US asylum system, violating US and international refugee law and practice.
I would argue that with provocative programs such as RIM/MPP, the historic divide between “popular opinion” and “elite opinion” on immigration (which would include the views of most federal judges, Democrat and Republican alike) came into play. Two decades ago, my colleague Steven Camarota and Roy Beck, the then-president of NumbersUSA, explained that:
[T]he Chicago Council on Foreign Relations…. has a long tradition of polling to find differences between the public and opinion leaders.
[In 2002, the council] poll[ed] the public [through] 2,800 telephone interviews from across the nation. [It also] surveyed nearly 400 opinion leaders, including members of Congress, the administration, and leaders of church groups, business executives, union leaders, journalists, academics, and leaders of major interest groups.
- The results of the survey indicate that the gap between the opinions of the American people on immigration and those of their leaders is enormous. The poll found that 60 percent of the public regards the present level of immigration to be a “critical threat to the vital interests of the United States,” compared to only 14 percent of the nation’s leadership — a 46 percentage point gap.
The poll results indicate that there is no other foreign policy-related issue on which the American people and their leaders disagreed more profoundly than immigration.
When asked a specific question about whether legal immigration should be reduced, kept the same, or increased, 55 percent of the public said it should be reduced, and 27 percent said it should remain the same. In contrast, only 18 percent of opinion leaders said it should be reduced and 60 percent said it should remain the same. There was no other issue-specific question on which the public and elites differed more widely.
- The enormous difference between elite and public opinion can also be seen on the issue of illegal immigration. The survey found that 70 percent of the public said that reducing illegal immigration should be a “very important” foreign-policy goal of the United States, compared to only 22 percent of elites.
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[T]he Council’s survey provides the clearest evidence to date that the public and nation’s leaders have very different points of view on immigration.
But is this data still relevant? What about Republican elite opinion? Well, in 2016, Dina Smeltz and Craig Kafura of the Chicago Council on Global Affairs (the Chicago Council on Foreign Relations’ new name) wrote in the Washington Post that:
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Trump understands Republican voters far better than the GOP elite does, in part because he recognizes where established leaders are out of touch with base voters.
In 2014, the Chicago Council on Global Affairs … conducted a unique pair of surveys: one of average Americans and the other of foreign policy opinion leaders from government, think tanks, media organizations, academia and other interest groups. These surveys — which pre-date Trump’s candidacy but help us understand it — show that there are large divisions between the attitudes of self-described Republican opinion leaders and average Republicans on immigration, refugees, trade and jobs.
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The … results showed that Republicans among the general public were about 40 percentage points more likely than Republican leaders to think that large numbers of immigrants and refugees coming into the United States posed a critical threat to the country (55 percent of GOP voters vs. 16 percent of Republican leaders) and that controlling and reducing illegal immigration is a very important U.S. foreign policy goal (61 percent of GOP voters vs. 20 percent of GOP leaders). When asked whether the United States should accept Syrian refugees, the Republican public was far less supportive than Republican leaders (27 percent vs. 71 percent).
“Protecting the jobs of American workers” has been a top priority for the U.S. public ever since the Chicago Council began its polling in 1974 … . Republican opinion leaders are not in sync with average Republicans on this issue. In 2014, 76 percent of Republicans in the public said protecting jobs was a very important goal — yet only 37 percent of Republican opinion leaders agreed.
Trump Judges to the Rescue?
But what about the ascendency of federal judges and Supreme Court justices nominated by President Trump? Savage, Haberman, and Swan point out that:
Since much of Mr. Trump’s first-term immigration crackdown was tied up in the courts, the legal environment has tilted in his favor: His four years of judicial appointments left behind federal appellate courts and a Supreme Court that are far more conservative than the courts that heard challenges to his first-term policies.
[T]he 5-4 majority of the Supreme Court that blocked the [Trump administration’s] last attempt [to terminate the Deferred Action for Childhood Arrivals program] no longer exists: A few months after the DACA ruling, Justice Ruth Bader Ginsburg died and Mr. Trump replaced her with a sixth conservative, Justice Amy Coney Barrett.
Lest Savage, Haberman, and Swan succumb to irrational exuberance, let me point out that (as I have written) just this summer in U.S. v. Texas, the Supreme Court issued a 5-4 decision throwing out Texas and Louisiana’s challenge to DHS Secretary Mayorkas’ 2021 “Guidelines for the Enforcement of Civil Immigration Law”, in which Mayorkas told DHS immigration officers in no uncertain terms to ignore congressional mandates regarding the arrest and detention of criminal aliens and aliens ordered removed.
The prevailing coalition of Justices Brett Kavanaugh (Trump-nominated), John Roberts, Jr., and the three Obama/Biden-nominated justices ruled that the states did not have “standing” to bring a legal challenge in the first place, even assuming that the Mayorkas Guidelines were unlawful. In fact, the clear import of the coalition’s decision is that no one will be able to establish the standing necessary to challenge an administration’s flouting of congressional mandates regarding the arrest, prosecution, and likely the detention of persons in the immigration and criminal justice contexts. The coalition has dealt Congress’s plenary power over immigration a severe blow.
Even worse than the coalition’s decision itself are its implications for the future. The coalition has left open the possibility/implied/insinuated that:
- Even if Congress had been (in the coalition’s mind) crystal clear that it was imposing an arrest mandate, the states still might not have been able to establish standing to challenge the administration’s open disregard for the mandate;
- It may be unconstitutional for Congress to impose arrest/prosecution mandates in the first place; and
- Last but not least, it is possible that no one will be able to establish the standing necessary to challenge a president’s violation of his constitutional obligation under Article II to “take care that the Laws be faithfully executed”.
As Justice Alito proclaimed in his fiery dissent:
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[T]he majority’s understanding of the “executive Power” seems to be that a President can disobey statutory commands unless Congress, by flexing its muscles, forces capitulation. That is not the Constitution’s conception … . [It] instead, requires a President to “take Care that the Laws be faithfully executed.”
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The majority’s conception of Presidential authority smacks of the powers that English monarchs claimed prior to the “Glorious Revolution” of 1688, namely, the power to suspend the operation of existing statutes, and to grant dispensations from compliance with statutes. After James II was deposed, that changed. The English Bill of Rights of 1689 emphatically rejected “the pretended Power of Suspending of Laws or the Execution of Laws by Rega[l] Authority without Consent of Parl[i]ament” and “the pretended Power of Dispensing with Laws or the Execution of Laws by Rega[l] Authorit[y] as it ha[s] bee[n] assumed and exercised of late.”
Well, guess who just got back? That wild-eyed boy that had been away. King James is back in town. And this is after the passing of Ruth Bader Ginsburg, with Trump-nominated Justice Kavanaugh leading the welcoming party.
Justice Kavanaugh additionally joined Chief Justice Roberts and the Obama/Biden nominated justices (over the dissent of the four other justices nominated by Republican presidents) in Biden v. Texas, ruling that the Biden administration was not required to utilize MPP for those aliens subject to mandatory detention who could not be detained, and thus could release them en masse.
This all just goes to show that one shouldn’t take anything for granted in Supremeland, even as the Court is presently constituted. As Bette Davis once said, “[f]asten your seatbelts, it’s going to be a bumpy night” in federal court.
End Notes
1 Noll reviewed actions where a federal court reached a decision or the agency withdrew the action after being challenged, including regulations (and the delay, repeal, or amendment to the regulations of prior administrations) and efforts to “weaken or change the regulatory landscape through guidance or memoranda”.
2 Noll explained that “If the decision was issued by a panel of judges, [her] study assigns ideology according to the political party affiliation of the nominating president for the majority of the judges on the panel.”
3 Noll elaborated that “In adjudicated cases involving statutory interpretation claims, Republican-appointed judges ruled for the Administration only 52% of the time, while Democratic-appointed judges [did so] 19% of the time. In cases involving reasoned explanation claims” the corresponding figures were 49 percent and 18 percent.
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