JUSTICE BUILDING BLOG

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Wednesday, November 30, 2022

US V TEXAS

 The Alamo it was not when the US Supreme Court (motto: "Not political unless it's abortion or gun rights") heard the case of US v. Texas this week. On the docket was the order of US District Court Judge Drew Tipton of Texas. A Trump appointee who has been on the bench two years, Tipton is a throwback to the activist Judges of the 1960s when Judges took over school districts to enforce desegregation. Tipton's activist rulings have a right wing (lunatic) bent.  In July, Tipton assumed partial control of Homeland Security and ICE, mandating that law enforcement officials strictly and without any discretion, enforce two federal laws stating that the government  "shall take into custody" certain illegal immigrants and "shall remove within 90 days" those individuals from the United States. 

But as we noted, coincidentally on the blog earlier this week, judges do not make arrest or charging decisions (much to the chagrin of at least one Judge in Texas and one in Miami).  Judge Tipton was reading the law to require ICE to act in every case that met the criteria of federal law. It was as if Officer Friendly who stopped you for going five miles over the speed limit had no discretion to issue a warning rather than a ticket. As Justices Kavanaugh and Roberts noted at the OA- the government does not have the funding or staff to do what Tipton ordered.  Kavanaugh noted "resource constraints", as the DOJ said they had resources to process about 400,000 of the potentially 11 million people who fit within Tipton's order. Roberts called following Tipton's order "impossible" for the government to follow. That led us to ponder arguing the "Robert's Doctrine" the next time we are in trial: "Mr. Rumpole I have sustained the prosecution's objection. Please move on."  "Sorry Judge. That's impossible for us." 

Tipton's rather simplistic and sophomoric legal reasoning also ignored legal precedent- something right wing judges are wont to do in the face of political goals. See eg., Dobbs v. Jackson overruling Roe v. Wade. 

In Heckler v Cheney, the Supreme Court held in 1985 that "an agency's decision not to prosecute or enforce...is a decision generally committed to an agency's absolute discretion".  The court noted that the principle was rooted in "no small part to the general unsuitability for judicial review of agency decisions to refuse enforcement." The limited role of the judiciary, in all its glory, except in Texas, Miami and for certain right wing judges with political agendas.  In Railroad Company v. Hecht, in 1877 the Court held that law enforcement officers can ignore a legislative command that they "shall arrest" a certain class of people (like snippy legal bloggers in Miami) : "as against the government, the word 'shall' when used in statutes, is construed as 'may'..." 

In other words, Congress can authorize Officer Friendly to write the ticket, but not force him to do so. 

Miami Judges can scowl and shake their head in disgust during the once in a decade event when prosecutors agree to a motion to dismiss, but they cannot file lesser included charges. 

And Texas Trump Judges cannot force ICE to deport everyone who doesn't look American to them. 


2 comments:

Anonymous said...

Why was this Texas Judge in court and not shopping for expensive art at ART BASEL?

Every Miami Judge was partying with the elite gallery owners, top 200 collectors and Jay-Z and Beyoncé.

I want to be a Judge.

Anonymous said...

https://media.ca11.uscourts.gov/opinions/pub/files/202213005.pdf