It’s no accident that all those rulings were issued by judges appointed by former President
When it comes to taking presidents to court over their policies, savvy lawyers at both ends of the political spectrum
Now, when the far-right leaders of Texas have a beef with Biden, Governor
The GOP isn’t counting only on district courts. The New Orleans-based Fifth Circuit Court of Appeals, whose jurisdiction includes Texas, is known to be one of the most conservative of the nation’s 11 regional appeals courts. And the last stop is the U.S. Supreme Court, which now has
That means that for any lawsuit against the Biden administration, his adversaries have three chances to win a favorable ruling; if they choose the right path through the courts, the odds are good they’ll end up with one.
“Forum shopping”—a legal term for the practice of choosing a court to gain maximum advantage—plays heavily into the decision-making by state attorneys general, Republicans and Democrats alike, when they pick fights with the federal government over policymaking, according to Paul Nolette, a political science professor at Marquette University.
Nolette, who tracks such litigation, says that selecting favorable courts and channeling cases to specific judges helped attorneys general score a win rate of about 60% in 78 multistate challenges to former President
“A big part of it is they get to choose where to start,” Nolette says, adding that a key objective is to “delay and frustrate the administration as much as possible.”
Paxton’s office didn’t respond to a request for comment.
An example of forum shopping in action is Texas’ suit, which Missouri joined, to stop Biden from ending Trump’s so-called remain-in-Mexico policy, formally known as the Migrant Protection Protocols (MPP). Biden suspended MPP his first day in office, and Homeland Security Secretary
Texas dispatched its lawyers to the Panhandle city of Amarillo. Ordinarily, when a suit is filed at a particular federal courthouse, it’s assigned to a judge through a random lottery. But the only federal district judge in Amarillo is
In August, Kacsmaryk ordered Biden to reinstate MPP. In a scathing 53-page ruling, he faulted Mayorkas for not considering the benefits of the policy, including that it was preventing criminals from slipping into the country by filing false claims of asylum.
The next round of battle was at the Fifth Circuit, which has 26 judges in total, 19 of them Republican-appointed. Three appellate judges—including two Trump appointees—upheld Kacsmaryk’s decision, agreeing with the Trump administration’s assessment that the program had suppressed illegal border crossings and discouraged migrants from trying to disappear inside the U.S.
The Biden administration then asked the Supreme Court for a reprieve. The court
Homeland Security is now trying again to terminate MPP and replace it with a new asylum policy, but a hearing at the Fifth Circuit on Nov. 2 didn’t go well for Biden administration lawyers. One Trump appointee on the panel,
Abbott and Paxton used the same strategy to challenge Biden’s deportation freeze, which was a mostly symbolic rebuke of Trump’s harsh immigration crackdown.
Tipton worked fast. At a Jan. 25 hearing, he ordered the administration to address concerns about the early release of undocumented immigrants raised by
Success isn’t guaranteed, however: Things don’t always go the way forum shoppers would like.
Texas’ leaders returned to Victoria in April to accuse the Biden administration of undermining immigration enforcement by declining to detain unauthorized migrants convicted of certain crimes. Again, Tipton sided with Texas, suspending parts of the Biden administration policies—and going even further. He ordered the government to begin keeping detailed records of every unauthorized immigrant it chooses to detain or release, who made that decision, and why.
But in September, the Fifth Circuit surprisingly
The unexpected victory for Biden may be short-lived. Texas has requested a review of the ruling by a panel comprising the court’s 16 active judges. Eleven of them—two-thirds—were appointed by Republican presidents. —With
To contact the author of this story:
To contact the editor responsible for this story:
© 2021 Bloomberg L.P. All rights reserved. Used with permission.