Washington, D.C.

A Short Order About a Long Argument

Most great constitutional events arrive with trumpets. Tuesday's came in a brief, unsigned order, with no noted dissents.

The Supreme Court declined to restore a Biden-era regulation that allows immigration judges to suspend, or "administratively close," some deportation proceedings. The rule, adopted in 2024 by the Executive Office for Immigration Review, part of the Justice Department, was meant for cases such as a crime victim or witness who needs time to seek relief, such as asylum, from a separate agency, U.S. Citizenship and Immigration Services. The request to revive it came from Baltimore, New Haven, Columbus and a legal-services group, Centro Legal de la Raza.

It is a small order. But small orders are where a country keeps its habits.

How the Rule Fell

In June, Texas sued in federal court in Wichita Falls, where the case landed before Chief U.S. District Judge Reed O'Connor. Texas called the rule "one part of the Biden-Harris Administration's campaign to undermine our immigration laws" and argued the agency had no authority to adopt it, since federal law has an immigration judge decide, at the end of a proceeding, whether a person is removable.

A few hours after the case was filed, the Justice Department and Texas asked the judge to enter a final judgment for the state, throw out the rule and bar a similar one in the future. He granted those requests the same day, according to SCOTUSblog. In August the cities and the legal group tried to join the case to defend the rule on appeal, since neither Texas nor the federal government would; the judge denied them for lack of standing. The Fifth Circuit refused to block the agreement. On Oct. 9 the challengers came to the Supreme Court, calling it the product of "egregious collusion."

The Case for the Court's Caution

Let me say first what a conservative should say. The law is made by Congress. An agency is a servant of the statute, not a second legislature, and a rule resting on a thin reed of statutory text is a house built on a loan. If the code says a judge decides at the end whether a person may be removed, conservatives are right to ask where a bureaucracy found the power to say "not yet." Courts that decline to rescue such a rule show restraint, a virtue we praise when it is shown to us.

There is also a public interest in finishing things. A docket that can be paused indefinitely can be paused forever, and a law never carried out is a rumor.

The Case for Unease

Now the other half, because a conservative who sees only one half is a partisan.

The Solicitor General told the justices the challengers were trying to turn a narrow dispute over joining the case into "a far-reaching attack" on the judgment, and Texas said the agreement was "accepted by the actual parties." Those are serious answers. But the challengers' lawyer made a serious point too: that if a judgment obtained this way stands, "any agency can avoid" the federal law governing agency rulemaking "by advertising its unwillingness to defend a disfavored regulation and by immediately acquiescing to nationwide relief."

Conservatives spent years objecting, rightly, to "sue and settle," in which an agency and a friendly plaintiff arrange a result neither could get through the legislature. A principle that is true when it hurts the other side is true when it helps ours. The Court did not rule on that question. It declined, without comment, to pause the judgment, and we should not read into silence more than silence contains.

Texas may well be right on the law, and the method may still deserve scrutiny. A rule that falls because Congress repealed it carries authority. A rule that falls by agreement of two parties on the same side of the courtroom, before anyone could speak for the other side, carries a little less.

Chesterton's Fence

In his 1929 book The Thing, G.K. Chesterton imagines a fence or gate across a road. The modern type of reformer, he writes, "goes gaily up to it and says, 'I don't see the use of this; let us clear it away.'" The more intelligent reformer should answer: "If you don't see the use of it, I certainly won't let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it."

The administrative-closure rule was somebody's fence. It was built, its defenders say, to give a crime victim time to seek relief, or a neglected young person time to find it. Whether it stood on sound ground is a fair question, and perhaps Texas answered it. But the wise response to a fence of doubtful title is to ask who needed it and then pass a better one through the proper door, which is Congress.

What Remains to Be Done

A country that wants a lawful immigration system must do the dull work of writing one: statutes that say plainly when a case may be paused, for whom and for how long; judges who use common sense inside clear walls; and rules defended by someone, in open court, with both sides in the room.

Who sits on the Court matters; at a Lubbock rally on Tuesday the President joked that he would pick Sen. Ted Cruz for the next vacancy, though there is none and Cruz has said he prefers the Senate. But the Court is no cure for a Congress that will not legislate. If judges are left to do the work of lawmakers, sooner or later we will be disappointed in the judges.

The fence stands for now. The task is to build a better one.

References

• Court declines to restore Biden-era regulation allowing some deportation proceedings to be suspended – SCOTUSblog (Amy Howe, Oct. 27, 2026)
• Supreme Court won't intervene to allow judges to pause some deportation proceedings – AP, via The Washington Post (Oct. 27, 2026)
• G.K. Chesterton, "The Drift from Domesticity," in The Thing (1929)

Photo by Tim Mossholder on Unsplash