On Thursday evening, a Trump-appointed judge named Matthew Kacsmaryk effectively ordered the Biden administration to reinstate a harsh, Trump-era border policy known as “Remain in Mexico,” which requires many immigrants seeking asylum in the United States to remain on the Mexican side of the border while their case is being processed. It’s the second time that Kacsmaryk has pulled this stunt — he did the same thing in 2021, and the Supreme Court overturned his decision last June.
It’s a significant decision in its own right, and will only prolong uncertainty at America’s southern border. But Kacsmaryk’s order in this case, Texas v. Biden, was merely the capstone of an unusually busy week for this judge. His busy week, and months of earlier actions, show the havoc one rogue federal judge can create, especially in today’s judiciary.
The previous Thursday, Kacsmaryk became the first federal judge since the Supreme Court eliminated the constitutional right to an abortion to attack the right to contraception.
Kacsmaryk’s decision in Deanda v. Becerra targets Title X, a federal program that provides grants to health providers to fund family planning and contraceptive care. He claimed that the program is unlawful because it doesn’t require grant recipients to get parental permission before treating teenage patients. Lest there be any doubt, his opinion is riddled with obvious legal errors. Kacsmaryk didn’t even have jurisdiction to hear the Deanda case in the first place.
Meanwhile, in mid-November, Kacsmaryk handed down another decision in Neese v. Becerra, which held that a federal law prohibiting certain forms of discrimination by health providers does not protect against anti-LGBTQ discrimination. His opinion cannot be squared with the Supreme Court’s decision in Bostock v. Clayton County (2020), which established that statutes prohibiting “sex” discrimination also ban discrimination on the basis of sexual orientation or gender identity, because “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
Meanwhile, abortion rights advocates are holding their breath waiting for Kacsmaryk to decide Alliance for Hippocratic Medicine v. FDA, a case asking him to force the FDA to withdraw its approval of mifepristone, a drug used to induce an enormous percentage of all abortions in the United States. Given Kacsmaryk’s record, it would be shocking if he does not issue such an order — regardless of whether he has any plausible legal basis for doing so.
Kacsmaryk is one of many Trump appointees to the federal bench who appears to have been chosen largely due to his unusually conservative political views. A former lawyer at a law firm affiliated with the religious right, he’s claimed that being transgender is a “mental disorder,” and that gay people are “disordered.” As Sen. Chuck Schumer (D-NY) said during his confirmation fight, “Mr. Kacsmaryk has demonstrated a hostility to the LGBTQ bordering on paranoia.”
And Kacsmaryk is just as fixated on what straight people are doing in their bedrooms. In a 2015 article, Kacsmaryk denounced a so-called “Sexual Revolution” that began in the 1960s and 1970s, and which “sought public affirmation of the lie that the human person is an autonomous blob of Silly Putty unconstrained by nature or biology, and that marriage, sexuality, gender identity, and even the unborn child must yield to the erotic desires of liberated adults.”
Yet, thanks to an obscure rule governing which federal judges are assigned to hear cases in Texas federal courts — 95 percent of civil cases filed in Amarillo, Texas’s federal courthouse are automatically assigned to Kacsmaryk — this prurient man is now one of the most powerful public officials in the United States. Any conservative interest group can find a federal policy they do not like, file a legal complaint in the Amarillo federal courthouse challenging that policy, and nearly guarantee that their case will be heard by Kacsmaryk.
Many of Kacsmaryk’s decisions are so poorly reasoned that they can be rebutted in just a couple of sentences.
His opinion in Neese, for example, concludes that a statute prohibiting discrimination “on the basis of sex” does not prohibit LGBTQ discrimination. But, again, the holding of Bostock was that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
Similarly, one of the many problems with Kacsmaryk’s Deanda decision is that it violates the constitutional requirement that federal courts may only hear a challenge to a federal policy if the person bringing a lawsuit has been injured in some way by that policy. The plaintiff challenging Title X in Deanda is a father who does not claim that he has ever sought Title X-funded care, does not allege that his daughters have ever sought Title X-funded care, and who doesn’t even claim that they intend to seek such care in the future.
Often, Kacsmaryk’s opinions suggest not only that he knows he is defying the law, but also that he revels in doing so. His opinion in Neese, for example, opens with a quote from Justice Samuel Alito’s dissenting opinion in Bostock. A dissent, by definition, is not the law. Indeed, it is often the opposite of the law, because dissenting opinions state arguments that a majority of the Court rejected.
Or consider his two decisions in the Texas case. The first time the Remain in Mexico program was before Kacsmaryk, he claimed that a federal law known as Section 1225 only gives “the government two options vis-à-vis aliens seeking asylum: 1) mandatory detention; or 2) return to a contiguous territory.”
The Supreme Court identified multiple problems with this reasoning. Among other things, Kacsmaryk ignored that federal law explicitly gives the government more than two options, including the option to “parole into the United States” an immigrant seeking admission to this country “for urgent humanitarian reasons or significant public benefit.” According to the Supreme Court, Kacsmaryk also engaged in “unwarranted judicial interference in the conduct of foreign policy,” because his opinion effectively forced the United States government to bargain with Mexico in order to reinstate the Remain in Mexico policy.
Kacsmaryk’s second Texas decision interferes with US foreign policy no less than the first, because it effectively requires the Biden administration to go back to Mexico and seek its permission to reinstate a program that cannot operate without the Mexican government’s permission.
Similarly, Kacsmaryk’s latest decision puts a fair amount of weight on the fact that the Supreme Court assumed, without deciding, that “the dissent’s interpretation of [section 1225] is correct” with respect to one provision that both Alito’s Texas dissent and Kacsmaryk’s first Texas decision read to mandate that certain immigrants must be detained. But the reason why the Court made this assumption is to emphasize that, even if Kacsmaryk had read this provision of the statute correctly, that still did not justify reinstating Remain in Mexico. Indeed, the Supreme Court labeled the dissent’s interpretation of section 1225 as a whole “practically self-refuting.”
Kacsmaryk also spends much of his opinion faulting the government for not providing a fuller explanation of why the Biden administration decided to end the Remain in Mexico program in an October 29, 2021 memo. Although this memo spends three pages discussing “the concerns of states and border communities,” for example, Kacsmaryk claims that the administration failed “to adequately consider costs to States and their reliance interests.”
It is true that, in Department of Homeland Security v. Regents (2020), the Supreme Court held that the federal government must explain the “reasoned decisionmaking” it used to justify changing one of its policies. But the Court also emphasized that judges should apply a “narrow standard of review” when assessing if a memorandum explaining a new policy is adequate, and should “assess only whether the decision was ‘based on a consideration of the relevant factors and whether there has been a clear error of judgment.’”
Instead, Kacsmaryk nitpicks the October memo, faulting it for things like failing to perform a “cost-benefit analysis,” or for not giving enough weight to the degree to which the Remain in Mexico program might deter asylum seekers from arriving at the border.
But if Regents permits this kind of granular judicial criticism of a new policy’s justification, then no federal policy can ever be changed. There will always be some study that the federal government could have conducted, but didn’t, before announcing a shift in its approach. And there will always be some argument for maintaining the status quo that the government either didn’t mention in its memo justifying the new policy, or did not discuss at as much length as it could have.
Kacsmaryk is able to behave this way in no small part because his decisions appeal to the US Fifth Circuit Court of Appeals, a reactionary court dominated by Republican appointees, many of whom share his flexible approach to judicial decision-making.
But he also gets away with his behavior because the Supreme Court provides only the most cursory supervision of Kacsmaryk, even when a majority of the justices determine that the Trump judge mangled the law.
Shortly after Kacsmaryk issued his first decision ordering the administration to reinstate Remain in Mexico, the Supreme Court rejected the government’s request to temporarily block the decision while the case was being litigated. It then left Kacsmaryk’s ruling in place for 10 months, before ultimately ruling that he had misread the law.
Even then, however, the Supreme Court’s Texas decision left the question of whether the October 29 memo adequately explained the administration’s reasoning for ending the Remain in Mexico program undecided. And then it sent the case back down to Kacsmaryk to resolve this question. Given Kacsmaryk’s record, the justices who decided the Texas case must have known how he would rule on that question.
If the Supreme Court follows this same pattern again, it may be 2024 before the justices get around to reversing Kacsmaryk’s second Texas decision. That would mean that, for nearly half of President Joe Biden’s current term in office, Kacsmaryk will have effectively wielded what should have been the Biden administration’s power to decide US border policy.
The Texas federal courts’ unusual case assignment process, which allows so many litigants to choose Kacsmaryk as their judge, bears much of the blame for the enormous power he wields. Ultimately, however, the best safeguard against rogue judges is an appellate system where higher-ranking judges act in good faith — and in a timely manner — to review lower courts’ decisions and reverse them when necessary.
That system has now broken down. And that means that Kacsmaryk can act as king almost any time someone files a legal complaint in his Amarillo courthouse.