In Episode 62 of the CounterVortex podcast, Bill Weinberg grimly notes that, even with 400,000 Americans dead to COVID-19, the worst potentialities of the Trump presidency were not realized. Trump never (quite) established a dictatorship, and we didn’t (quite) go over the edge into civil war. The critical task now for the country’s progressive forces is to push for a maximal and thoroughgoing detrumpification—akin to the denazification of Germany after World War II. We may truly hope that the Capitol insurrection will prove to have been the last gasp of Trumpism. However, it may have been his Beerhall Putsch—and, as last time, there could be a second act. The more thoroughly Trumpism is reversed, the more likely it will be defeated and broken politically—especially given its glorification of “winning” and denigration of “weakness.” The risk of sparking a backlash is not to be dismissed, but the greater risk is that of appeasement. Listen on SoundCloud or via Patreon.
Production by Chris Rywalt
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Biden begins process of de-Trumpification
President Joe Biden issued 17 orders on Jan. 20, his first day in office, reversing key Trump administration policies. The US has begun the process of rejoining the World Health Organization (WHO), and revived the Obama-era Directorate for Global Health Security & Biodefense, which Trump had dissolved. The US has also begun the process of rejoining the Paris climate accord, and the permit for the Keystone XL pipeline has been suspended.
All deportations on hold pending review. The Deferred Action for Childhood Arrivals (DACA) program has been restored, the “Muslim ban” lifted, and border wall construction halted. The state of emergency declared by Trump in 2019 to facilitate border wall construction over the head of Congress has been overturned. Trump’s suspension of the Deferred Enforced Departure (DED) protection for Liberians has also been overturned. Non-US citizens will once again be counted in the Census. (Jurist, NYT)
We still await action on stopping the Dakota Access and Line 3 pipelines. We also await action to reverse Trump’s suspension of Temporary Protected Status (TPS) for Haitians and Salvadorans. Critically, we await steps to dismantle the ICE detention complex, and especially to locate children that remain in custody or foster care, and to reunite them with their families. Amnesty International USA, in a statement upon issuance of the 17 executive orders, siad: “[T]he Biden administration must free people from immigration detention, release all families together, and end family detention.”
Texas sues Biden admin to halt suspension of deportations
Texas Attorney General Ken Paxton on Jan. 22 sued Biden-appointed officials at the Department of Homeland Security (DHS) to stop an executive action pausing deportations for 100 days.
President Joe Biden signed the 100-day moratorium on his first day in office, as part of a comprehensive review of DHS policies. The deportation freeze seeks to allow DHS to “enable focusing the Department’s resources where they are needed most,” including COVID-19 mitigation efforts in ICE facilities.
The order does not bar all deportations. It directs the department to prioritize the deportation of immigrants “suspected of terrorism or espionage,” crossers who entered the country after Nov. 1, 2020, and people who have voluntarily waived their right to stay in the US. It also does not seek to hamper “the apprehension or detention of individuals unlawfully in the United States who are not identified as priorities herein.”
Paxton argues that this order violates an agreement that the Trump administration’s DHS signed with Texas and a few other states weeks before Biden took office. The agreement required DHS to give state officials six months’ notice before changing immigration laws and ensured the states had a right to comment on proposed plans.
Paxton, who led a major fraudulent election challenge for Donald Trump, pledged to “fight against the many unconstitutional and illegal actions that the new administration will take, challenge federal overreach that infringes on Texans’ rights and serve as a major check against the administration’s lawlessness.” Paxton is currently under investigation by the FBI for allegedly using his office to do favors for his political donors. (Jurist)
Appeals court upholds ruling invalidating Dakota Access permit
A federal appeals court largely sided with the Standing Rock Sioux Tribe in its long-standing fight against the Dakota Access Pipeline, upholding a lower court decision that revoked a key permit for the line and required the US Army Corps of Engineers to conduct an environmental review. The Jan. 26 order from the US Court of Appeals for the DC Circuit does not require the pipeline to shut down, however.
The ruling reaffirmed an earlier decision from a panel of the DC Circuit judges that reversed a July 2020 lower court order requiring the pipeline to stop operating and be emptied of oil within 30 days.
The panel in August 2020 kicked the matter back to US District Judge James Boasberg for further consideration, and he has not yet ruled on whether the pipeline can continue operating while the easement for the line’s Missouri River crossing remains revoked. (Bismark Tribune, The Hill)
Biden officially rescinds Trump ‘zero tolerance’ migrant policy
In a letter to all US attorneys Jan. 26, President Joe Biden’s acting attorney general, Monty Wilkinson, officially rescinded the Trump administration’s “zero tolerance” program, which led to the separation of over 3,000 migrant families. (NBC)
Biden hits ‘pause’ on oil and gas leasing
In an effort to slow the nation’s contribution to climate change, President Biden has signed an executive order to begin halting oil and gas leasing on federal lands and waters. Biden is ordering the Department of the Interior to “pause” new oil and gas leasing on public land and offshore water “to the extent possible” and to review existing leasing and permitting practices “related to fossil fuel development” on the properties.
Biden framed the signing in a way to head off concerns about job loss. “Today is Climate Day at the White House, which means it’s Jobs Day at the White House,” Biden said at the top of his remarks, also citing the health and national security impact of climate change, which Biden called a “maximum threat.” (NPR)
Federal judge blocks 100-day pause on deportations
A judge at the US District Court for the Southern District of Texas on Jan. 26 granted a temporary restraining order against the Department of Homeland Security, blocking President Joe Biden’s 100-day deportation pause. (Jurist)
Biden bait-and-switch on oil and gas leasing?
Despite the supposed “pause” on oil and gas leasing, Bloomberg reports that the Biden administration has actually continued to issue permits—at least 31 since he took office.
Offshore, the Bureau of Safety & Environmental Enforcement (BSEE) has issued 22 drilling permits to eight companies since Jan. 20. Recipients include BP, Arena Offshore, Shell Offshore and BHP Billiton Petroleum. The offshore approvals, for wells in the Gulf of Mexico, have been issued on a steady basis since Biden’s inauguration.
Onshore, the Bureau of Land Management (BLM) issued nine permits for wells in Montana, New Mexico and Wyoming on Jan. 20 and Jan. 21, according to a review by watchdog group Accountable.us. Recipients include Jonah Energy, Burlington Resources Oil & Gas Co. and Legacy Reserves Operating.
‘Remain in Mexico’ policy suspended
The “Remain in Mexico” policy for asylum-seekers has been suspended pending review under a new Biden executive order. The administration also filed a motion asking the Supreme Court to cancel upcoming oral arguments for two appeals filed by ex-president Trump concerning the southern border wall and the “Remain in Mexico” policy. (MJ, Jurist)
Another executive order establishes a task force to locate and reunite more than 500 migrant children still separated for their parents. (ABC)
Biden calls for ‘Root Causes Strategy’ on migration
President Biden’s executive order on the creation of a regional framework for addressing migration issues in the country calls for a focus on the “Root Causes of Migration” in various countries, such as El Salvador, Guatemala and Honduras. The so-called “Root Causes Strategy” includes promoting human rights in these countries, combatting corruption, encouraging the deployment of resources and collaborating on migration issues. The order also discussed the need to resume “the safe and orderly processing of asylum claims at United States land borders.” This order revoked three memoranda, a proclamation and an executive order signed by Trump. (Jurist)
UN: end use of private prisons for migrant detention
Jelena Aparac, chair-rapporteur of the UN Working Group on the use of mercenaries, said Feb. 4 the US federal government’s reduction of its dependence on private prisons is an “encouraging step” but urged the US to also end outsourcing of detention centers holding migrants and asylum seekers.
President Biden ordered the US Department of Justice not to renew its contracts with 12 privately owned federal criminal detention facilities on Jan. 26.
UN experts urged the US to “eliminate all for-profit detention facilities,” saying that “detainees should not become units for profit.” (Jurist)
Biden to increase US refugee admissions
The White House announced Feb. 4 that President Joe Biden would sign an executive order to dramatically increase refugee admissions to the US for the first fiscal year of the Biden administration, marking a clear departure from the Trump administration’s refugee policies.
The new executive order is expected to broadly reform current US refugee policy. Among the announced provisions is an ending of Trump-era policies that limited refugee resettlement and required excessive vetting of applicants; a stated intention to improve the integrity and transparency of the US Refugee Admissions Program (USRAP); an expansion of refugee adjudication capacity; an enhancement of access for vulnerable refugees, including women, children, and individuals at risk of persecution because of their gender, gender identity, or sexual orientation; and a review of the Special Immigrant Visa (SIV) Program for Iraqis and Syrians, to consider whether to pursue legislation for an SIV program for individuals who have served the US in conflict areas. The order additionally notes the intention to propose a raise in refugee admission numbers to 125,000, following appropriate consultation with Congress.
Donald Trump signed a controversial executive order which, among other provisions, reduced the number of refugees allowed annual entry into the US to a maximum of 50,000, with full bans on the entry of refugees from Syria. (Jurist)
US to ‘reengage immediately’ with Human Rights Council
The US State Department announced Feb. 8 that the US will “reengage immediately and robustly” with the UN Human Rights Council, citing direct instruction from President Joe Biden. The decision comes nearly three years after the Trump administration withdrew the US from the Council in 2018. “The Biden administration has recommitted the United States to a foreign policy centered on democracy, human rights, and equality,” said Secretary of State Antony Blinken. (Jurist)
Biden admin announces plan to reunite separated migrant families
The US Department of Homeland Security announced the creation of a “Family Reunification Task Force” with plans to reunite hundreds of migrant children with their parents, separated under former president Trump’s “zero tolerance” immigration policy. (Jurist)
Biden to allow migrant children to reunite with parents in US
The Biden administration announced March 10 that it is re-instating a plan that was ended under the Trump era to help migrant minors in Central America reunite with their parents who are in the US legally.
Roberta Jacobson, special assistant to President Biden and coordinator for the US-Mexico border, announced the reinstatement of the Central American Minors (CAM) program, adding that in phase 2 of the CAM program, they will be working to improve safe legal avenues for entry into the US. The CAM program was established in 2014 to provide minors living in El Salvador, Guatemala, and Honduras the opportunity to be considered for refugee resettlement in the US.
Jacobson cautioned, however, that this does not mean people with young children should to try to enter the US in an “irregular fashion” and that “the border is not open.” (Jurist)
Biden administration sued over Keystone permit revocation
Twenty-one states led by Texas sued the Biden administration over its revocation of the Keystone XL pipeline permit. They claim that Biden did not consider the far-reaching consequences of canceling the pipeline. (Jurist)
Biden administration sued for halting oil & gas leasing program
Fourteen states filed suit March 24 over the Biden administration’s pause of the federal Oil and Gas Leasing Program. President Biden ordered a “temporary moratorium” on the program Jan. 21 so that the Department of the Interior could conduct a “comprehensive analysis of the potential environmental impacts of the oil and gas program.”
Louisiana filed suit in the US District Court for its Western District, leading a cohort comprising Alabama, Alaska, Arkansas, Georgia, Mississippi, Missouri, Montana, Nebraska, Oklahoma, Texas, Utah and West Virginia.
In their complaint, the states argue that the president’s halt on the Leasing Program violates both the Outer Continental Shelf Lands Act (OCSLA) as well as the Mineral Leasing Act (MLA).
Wyoming filed a separate complaint in the federal District Court for its own state. (Jurist)
Texas, Louisiana sue feds over failure to deport
Texas and Louisiana filed suit against the federal government in the US District Court for the Southern District of Texas, alleging that immigration authorities declined to take custody of convicted individuals who could be subject to deportation. According to the lawsuit, the government’s action violates federal law and the US Constitution. (Jurist)
Biden increases US refugee admissions cap to 62,500
President Biden announced May 3 that he would raise the United States’ refugee admissions cap to 62,500 for fiscal year 2021.
Biden previously announced he would retain former President Trump’s 15,000 cap despite promising an increased figure on the campaign trail. Rep. Alexandra Ocasio-Cortez called that decision “completely and utterly unacceptable” and said, “upholding the xenophobic and racist policies of the Trump admin…is flat out wrong.”
In his new statement, Biden again expressed doubt that the USwill be able to vet and accept 62,500 refugees before fiscal year 2021 ends on Oct. 1. However, the president said his administration would work to rebuild the US Refugee Admission Program (USRAP) and attempt to reach the heightened goal.
Biden added that he hopes to set a goal of 125,000 admissions for the 2022 fiscal year, which runs from October 1, 2021, to September 30, 2022. (Jurist)
Homeland Security reunites migrant families separated at border
US Department of Homeland Security Secretary Alejandro Mayorkas on May 3 announced plans to reunite four migrant families separated at the US-Mexico border under the former Trump administration.
Mayorkas will oversee the reunifications under President Joe Biden’s newly-created Family Reunification Task Force. “Our team is dedicated to finding every family and giving them an opportunity to reunite and heal,” Mayorkas told reporters.
Human rights advocates remain cautiously optimistic. “We are excited that these mothers will finally see their children after years, but the [American Civil Liberties Union] is certainly not prepared to celebrate just yet given the thousands who still need to be reunified and the more than 5,500 children who were traumatized and need help,” ACLU attorney Lee Gelernt said. “We are pressing for permanent legal status, compensation and social services. It is the least these families deserve given that our government deliberately abused them.”
President Biden created the Task Force on Feb. 2 to help reunify families and provide them with necessary support structures, such as offering parents humanitarian parole to enter the US to find their children. The Task Force is currently working to create a database of all the families separated under Trump’s “zero tolerance” immigration policy, with some separations dating back to 2017.
The four families will be the first to be reunified under the Task Force directive, with more reunifications planned over the coming months. The Task Force will release its first report and progress update on June 2. (Jurist)
Biden administration to return billions in border wall funding
The Biden administration is returning to the Pentagon billions in funds diverted by President Donald Trump to build the wall at the southwestern border, and plans to cancel all related construction contracts, an administration official told ABC News April 30.
Biden formally ends ‘Remain in Mexico’ program
The Biden administration on June 1 formally ended the Trump-era “Remain in Mexico” policy, which forced tens of thousands of Central American asylum-seekers to wait in Mexico for US court hearings. The administration paused the program, known as the Migrant Protection Protocols (MPP), shortly after he took office in January. Since then, more than 11,000 migrants enrolled in the MPP have been allowed to enter the US to pursue asylum claims. (The Hill, Al Jazeera)
Federal judge blocks new DACA applications
A federal judge in Texas ruled that Deferred Action for Childhood Arrivals, the Obama-era program shielding certain undocumented immigrants from deportation, is illegal and blocked new applicants.
The ruling from Judge Andrew Hanen would bar future applications. It does not immediately cancel current permits for hundreds of thousands of people—though it once again leaves them in devastating legal limbo.
DACA, created in 2012, was intended to provide temporary reprieve to undocumented immigrants who were brought to the United States as children—a group often described as “Dreamers”—many of whom are now adults.
Hanen, a George W. Bush appointee, ruled that Congress had not granted the Homeland Security Department authority to create DACA, and that it prevented immigration officials from enforcing removal provisions of the Immigration & Nationality Act. (CNN)
SCOTUS rejects Biden suspension of ‘remain in Mexico’
The US Supreme Court dealt a blow to the Biden administration when it refused to grant a stay of a lower court order requiring the administration reinstate a Trump-era immigration policy.
The Migrant Protection Protocols (MPP), informally referred to as the “Remain in Mexico” policy, requires that asylum seekers remain in Mexico while they await a hearing in a US immigration court. The policy was announced by the Trump administration in 2018, and overturned by Biden.
Texas and Missouri sued the government in federal district court, challenging the termination of the program. The district court found that the government had acted in an arbitrary and capricious manner in rescinding the MPP, violating the Administrative Procedures Act. Last week the US Court of Appeals for the Fifth Circuit upheld the lower court’s ruling, forcing the White House to seek an emergency stay with the Supreme Court.
The court denied the administration’s application for a stay, finding that the administration was unlikely to succeed on its claim that the andum rescinding the MPP was neither arbitrary nor capricious. (Jurist)
Biden prepares to resume ‘Remain in Mexico’
A new “tent facility” to house immigration courts is being built on the banks of the Rio Grande in Laredo, Tex., as the Biden administration prepares to resume the “Remain in Mexico” policy pursuant to a court order. Revival of the policy still hinges on approval of the Mexican government. (Border Report, ABC News)
The Department of Homeland Security (DHS) meanwhile announced suspension of the “expedited removal” policy that allowed ICE to summarily deport undocumented migrants without first bringing them before a judge.
The Trump administration expanded the expedited removal policy in 2019. At the time, immediate deportation was only used in cases that occurred at or near the border. The changes to the DHS rule allowed ICE to immediately deport any noncitizens in the country who could not produce proof that they had continuously resided in the US for two years or more. Several immigration advocacy organizations challenged the rule in the courts. (Jurist)
SCOTUS hears arguments in major climate change case
The US Supreme Court heard oral arguments Feb. 28 in West Virginia v. Environmental Protection Agency, a major test of the agency’s authority to regulate greenhouse gas emissions. Obama administration’s EPA adopted the Clean Power Plan (CPP), which was blocked by the Supreme Court while challenges are pending. In a worst-case scenario, the court could overturn Massachusetts v. EPA and hand the authority to regulate greenhouse gas emissions from power plants to Congress. (Jurist, CNN, NYT)
SCOTUS curtails EPA authority on greenhouse emissions
The US Supreme Court on June 30 ruled in West Virginia v. EPA that the Environmental Protection Agency (EPA) does not have the authority under section 111(d) of the Clean Air Act to enforce proposed power plant emission limitations. The majority relied on the Major Questions Doctrine, which had never before been used in a Supreme Court opinion. (Jurist)
Appeals court says DACA is illegal
A federal appeals court panel ruled on Oct. 5 that a program that protects nearly 600,000 young immigrants from deportation is illegal but allowed those already enrolled to renew their status—in essence keeping the status of the program unchanged but its future uncertain.
The decision from the three-judge panel on the US Court of Appeals for the Fifth Circuit affirmed a 2021 lower court decision. The Biden administration will need to continue its legal fight to enroll new applicants in the program, called the Deferred Action for Childhood Arrivals, or DACA.
The judges sent the case back to Federal District Court in Houston to consider a new administration policy issued in August to protect the program. The new regulation was intended to go into effect at the end of the month. (NYT)
Supreme Court strikes down Chevron deference
On June 28, the Supreme Court overturned a 40-year-old foundational part of administrative law, the Chevron doctrine, which will make it easier to successfully challenge regulations in court by eliminating a requirement that courts defer to the expertise of federal agencies in interpreting their laws.
The six Republican-appointed justices ruled that courts must exercise independent judgment in assessing an agency's statutory authority. This overruled the deference long afforded to an agency's interpretation of its mandate under Chevron U.S.A. v. Natural Resources Defense Council.
The case of Loper Bright Enterprises v. Raimondo, Secretary of Commerce, et al considered the regulation of fishing. The petitioners challenged the decision of the National Marine Fisheries Service (NMFS) to require petitioners to pay for observers required under a fishery management plan. They argued that the NMFS did not act within its mandate from the Magnuson-Stevens Fishery Conservation & Management Act or the Administrative Procedure Act. The high court found that the Chevron deference conflicts with these acts. (NYT, Jurist)
Further SCOTUS blows to administrative power
In addition to the so-called “herring case” referenced above, the Supreme Court issued to other decisions that dramatically reduce the enforcement power of federal agencies. In Securities & Exchange Commission v. Jarkesy, the justices backed a challenge to the constitutionality of the SEC’s internal tribunals for civil penalties for fraud, finding that they violate s the Constitution’s guarantee of a jury trial. (Politico)
In Ohio et al v. Environmental Protection Agency et al, the court blocked enforcment of the EPA’s so-called “Good Neighbor” plan, which mandates that 21 states. mosty in the Midwest, instate measures to curtail ozone pollution, so as to protect “downwind” states like New York and Pennsylvania. (CBS, SCOTUS Blog)