New York Lawyer's Legal Updates

The Stay Of The 100-Day Freeze Explained

Author: NYC Immigration Lawyer Alena Shautsova

I want to talk about the very essence of a free and democratic nation: The rule of law. America waves this phrase around, the rule of law, as if it were sacrosanct and inherent to the nation’s bloodwork. I’m here to tell you that maybe the rule of law is more a platitude than ever before.

Thanks to Montesquieu and his political philosophy, the separation of powers has ensured relative stability for democracies across the world:

When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty... there is no liberty if the powers of judging is not separated from the legislative and executive... there would be an end to everything, if the same man or the same body... were to exercise those three powers.

Each part checks one another. And the most important branch of this mechanism - the key to upholding liberty - is the independence of the judiciary from the executive and legislative bodies. If judges rule without fear nor favour then justice will be served. To achieve this, judges must remain uninfluenced, as best as possible, by the legislative and executive branches of government. Judges must rule without regard to political affiliation, else the sturdiness of a democratic society will be called into question.

Democracy has attempted to observe this principle. That is why when one branch of the government (executive power or the President) redners a decision, it can be overturned or modifies by a U.S. judge and change that decision or an order.

An example how the system works would be seeing of Ken Paxton, a Republican States Attorney General bringing a case before Federal Judge Tipton to place a temporary restraining order on Biden’s 100-day moratorium. The judgement was handed down swiftly, but thankfully contained only 14-day stay of the 100-day freeze.

When Paxton brought the request for a temporary restraining order, Tipton ruled that the state of Texas had standing to sue the Biden administration on the grounds that they had broken the memorandum of understanding signed between the executive and the state. According to Paxton, the memorandum demanded the DHS to provide 180 days notice and consult with Texas on any changes to immigration policy. This argument is likely not to have an ultimate win. No memorandum of understanding supersedes the legislative powers granted the President to unleash his fresh perspective on immigration policy.

The judge also paid reference to the possibility of the DHS exceeding the bounds of its authority. However, this does not seem possible. It was reaffirmed in the DACA case that the executive has extensive authority in deciding on deportation practice. The current head of the DHS has been properly anointed and hence has the power to make necessary changes.

In any event, it seems that the 14-day stay is temporary and eventually will be overturned either by the same court or a higher court. We will wait anxiously to see what other courts are going to rule in other key-cases related to asylum rules, work visa rules, visa bans, work permit regulations, and many many other areas of Immigration laws that were affected by the Trump’s view on Immigration and Immigration policies in the US.

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01 February 2021
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