During the Trump administration, the Democratic Attorneys General used the Administrative Procedure Act (APA) to postpone Trump guidelines until the notice and comment period requirements were met. Although President Barack Obama failed to meet the APA’s requirements in introducing the original rules, the Supreme Court enforced such procedures to reverse previous orders. During this legal battle over the Trump executive orders, I found repeatedly that the Democratic challengers brought up arguments in court that would likely be used against the next Democratic president to quickly reverse Trump’s orders. It’s over now. When Biden came to power, he immediately did what Trump did by taking unilateral Akton with no APA announcement. District Court Judge Drew B. Tipton ruled this week that acting Homeland Security Secretary David Pekoske’s instruction appears to be inconsistent with the same law.
According to federal law, the attorney general has the deportation 90 days after a deportation order. Texas Attorney General Ken Paxton argued that Biden’s 100-day hiatus was against the Administrative Procedure Act. Judge Tipton agreed
“The Court notes that by ordering a 100-day break for all deportations of aliens who are already under a definitive deportation order, the January 20 memorandum clearly inconsistent with or exceeds the authority granted to the Attorney General under 8 USC § 1231 (a) (1) (A). “
This is just a first volley on the matter as 100 days will pass before much litigation develops. It is a warning, however, that Democratic litigators have been questioning a president’s right to quickly and unilaterally undo previous and enforced enforcement policies or practices for four years.
When Trump promised full and unilateral action, there were a number of objections that it was illegal and inappropriate. Now many are calling for Biden to participate in the same unilateral measures to bypass Congress, including most recently Majority Leader Chuck Schumer. I have criticized Trump’s environmental policies and advocated Biden’s priorities for the environment. Indeed, I am pleased with many of his new guidelines. The sudden postponement of such unilateral action in Washington, however, is incredible even in a city where hypocrisy is treated as a real professional qualification.