Originally Published in The Hill
John Kruzel - March 15, 2021
Republican state attorneys general are increasingly turning to the courts in hopes of preserving pieces of former President Trump’s hard-line immigration agenda as President Biden hurries to roll back the policies.
The emerging dynamic is something of a role reversal from when Democratic attorneys general sued Trump for immigration policies that liberals viewed as not only illegal but also cruel, xenophobic and at odds with the country's immigrant roots.
Now, as Biden rushes toward repeal, he faces potential legal roadblocks of his own. Republican attorneys general say their lawsuits aim to ensure that U.S. immigration law is strongly enforced in order to protect public safety and save billions in tax dollars.
“I think the one thing that is becoming crystal clear with the Biden administration is that they are going all in on ‘open borders,’” said Arizona Attorney General Mark Brnovich (R). “It's troublesome. And I think that in the long run this is gonna hurt America.”
Over roughly the past decade, state attorneys general — Democratic and Republican alike — have become familiar faces in the bare-knuckle fights over immigration policy, feuding alternately with both Trump, a Republican, and his Democratic predecessor, Barack Obama.
The deeply fraught ideological tensions between federal and state governments have spilled into courts, often with state attorneys general leading the charge in pursuit of a radically different agenda from that of the White House’s occupant at the time.
Legal experts say these clashes are at least in part the result of congressional gridlock over what to do about the country’s roughly 11 million undocumented immigrants. With Congress unable or unwilling to pass comprehensive immigration reform, presidents have made changes through executive action.
Although Biden in his first week in office backed legislation that would create a pathway to citizenship for undocumented U.S. residents, he also wasted no time before drawing on his presidential powers to change immigration policy. Within hours of entering the White House he took executive action to unwind Trump’s agenda, which promptly sparked legal challenges from top state GOP lawyers.
On his first day in office, Biden's Department of Homeland Security ordered a 100-day freeze on deportations of nearly all undocumented immigrants while the administration undertook a review of Trump’s policies. Biden’s then-acting Homeland Security secretary, David Pekoske, said the pause on removals aimed “to ensure we have a fair and effective immigration enforcement system focused on protecting national security, border security, and public safety.”
Two days later, Texas Attorney General Ken Paxton (R) sued on the grounds that Biden’s move would “cause Texas immediate and irreparable harm” if not blocked.
The American Civil Liberties Union (ACLU), which is backing Biden in the lawsuit, said the administration’s move was a lawful application of the kind of executive discretion that presidents have long used to tailor their immigration programs.
“From our perspective, this is really about Texas’s interference in the 100-day pause and attempting to continue the immigration policies of the Trump administration,” Kate Huddleston, an attorney with ACLU Texas, told The Hill.
The federal judge in southern Texas presiding over Paxton’s lawsuit sided against the Biden administration. Judge Drew Tipton, nominated to the bench last year by Trump, agreed to temporarily suspend Biden's 100-day deportation ban on a nationwide basis, finding that the administration appeared not to have offered an adequate legal justification for halting removals.
Biden’s deportation freeze also came under a similar legal attack by Florida’s Republican attorney general, Ashley Moody.
“The Biden administration’s reckless policy of refusing to do their jobs and deport criminals places all those gains and Floridians’ public safety at risk,” Moody said on March 9 after filing her lawsuit, which is pending in a federal district court in Tampa.
Legal controversy also surrounded Biden’s move this week to rescind the Trump-era “public charge” rule, which creates higher barriers for poorer immigrants seeking U.S. residency. On Thursday, as Biden took steps to formally wipe the rule off the books, a dozen GOP state attorneys general scrambled to preserve it.
Enacted in 2019, Trump’s public charge rule imposed stricter financial requirements on would-be immigrants to the U.S. The rule directed federal immigration authorities to decline green cards and visas to applicants who were likely to become reliant on public aid — and expanded the universe of immigrants who fell into that category.
The GOP lawyers maintain that the rule would save more than $1 billion in tax dollars. Critics, however, say the policy amounts to a harsh “wealth test” for aspiring immigrants.
Led by Arizona and Texas, a dozen GOP state lawyers are now seeking to litigate the issue in three different federal appeals courts, with hopes that the case will eventually make its way before the Supreme Court.
According to legal analysts, courts have generally regarded immigration law as the exclusive purview of the federal government. That means state challenges to Biden's immigration moves face an uphill battle.
Perhaps owing to these long odds, Biden has managed to roll back several key planks of Trump’s immigration platform with no legal blowback from GOP attorneys. Biden has halted construction of Trump’s signature border wall project, ended Trump's travel ban that targeted mostly Muslim countries and has bolstered an Obama-era deportation shield for young undocumented migrants brought to the U.S. as children — a program Trump tried unsuccessfully to repeal.
Despite the odds being stacked against them, Republican attorneys general will likely continue to mount legal challenges against Biden, especially with lawmakers unlikely to reach bipartisan agreement on immigration reform, said Kevin R. Johnson, dean of the University of California, Davis School of Law.
“It doesn't seem like there's going to be any end to the legal skirmishing, absent some kind of immigration action that gets passed by Congress that changes the playing field on immigration," he said.