The Federal Courts Engaging in Foreign Affairs

Susie Madrak at Crooks and Liars calls it; “SCOTUS is throwing down the gauntlet that this president’s (Biden, in case you forgot) power derives not from the law, but from the conservative majority’s feelz about what a Democratic executive should or should not be allowed to do.

Just a bit of history, this was not a Trump Executive Order which Biden eliminated as he did many of Trump’s and Trump did with Barack Obama’s Executive orders. For the record, a definition of what an Executive Order is.

Executive Orders are issued by the White House and are used to direct the Executive Branch of the U.S. Government. Executive Orders state mandatory requirements for the Executive Branch, and have the effect of law. They are issued in relation to a law passed by Congress or based on powers granted to the President in the Constitution and must be consistent with those authorities.

Executive Orders

This was a policy put in place by the Department of Homeland Security under Trump and eliminate by the Department of Homeland Security under Biden. The Texas federal court claims the Department of Homeland Security committed some type of legal violation when it rescinded a Trump-era immigration policy. The Court has not identified what the violation is.

The basis for SCOTUS rejecting Biden killing a department policy comes from a 2020 ruling by SCOTUS blocking Trump from killing the DACA program.

On June 15, 2012, the U.S. Department of Homeland Security (DHS) announced that it would not deport certain undocumented youth who came to the United States as children. Under a directive from the DHS secretary, these youth may be granted a type of temporary permission to stay in the U.S. called “deferred action.” The Obama administration called this program Deferred Action for Childhood Arrivals, or DACA. This page provides guidance on how to apply for DACA, renew DACA, and other important information on DACA.

DACA – National Immigration Law Center (

Most recently a Federalist selected and appointed by Trump in 2019, Judge in Southern District of Texas ruled against President Biden, killing his reversal of a policy put in place blocking any aliens from entering the US while awaiting decisions from U.S. Department of Homeland Security as to their status.

“By September 3, 2021, the Government must file with the Court the legal standard it is abiding by with respect to the detention of aliens covered by or subject to 8 U.S.C. § 1226(c)(1)(A)–(D) given the Court’s injunction of the Memoranda at issue in this lawsuit,” Tipton demands in the final pages of his opinion–referring to the statute that governs detention of undocumented immigrants who are subject to deportation or not allowed to enter the country at all.

Trump Judge Overturns Biden Memo, Crowns Himself King Of ICE | Crooks and Liars

Ian Millhiser at Vox :

The Biden Administration asked SCOTUS for a “stay,” which Justice Alito, writing for the majority conservatives, rejected it. In it, Alito:

suggests that the Department of Homeland Security committed some legal violation when it rescinded a Trump-era immigration policy, but it does not identify what that violation is. And it forces the administration to engage in sensitive negotiations with at least one foreign government without specifying what it needs to secure in those negotiations.

The Supreme Court’s immigration decision on Trump’s “Remain in Mexico” policy, explained – Vox, Ian Milhiser, August 24, 2021

Justice Alito is basically saying we denied Trump with DACA so we are going to deny Biden from allowing aliens to stay in the US while awaiting status decisions. If the Biden administration is to follow the Texas court order and SCOTUS decision, it has one week to complete the negotiation with Mexico. Neither does Alito tell the Biden administration what it must obtain from Mexico.

Again Ian Millhiser at Vox explains why the federal courts interfering in foreign affairs policy is unusual.

One of the most foundational principles of court decisions involving foreign policy is that judges should be extraordinarily reluctant to mess around with foreign affairs. The decision in Texas defies this principle, fundamentally reshaping the balance of power between judges, and elected officials in the process.

The Supreme Court’s immigration decision on Trump’s “Remain in Mexico” policy, explained – Vox,, Ian Milhiser, August 24, 2021

But is this really the highest court of law or a bunch of hacks attempting to engage in foreign relations or are they attempting to sway the politics and political outcomes of a nation?