Republican-led states have mounted an aggressive legal strategy to derail key elements of President Biden’s immigration agenda, challenging at least a dozen nationwide border or immigration-related policies in federal court.
Officials in Arizona, Missouri, Texas and other GOP-controlled states have convinced federal judges, all but one of whom was appointed by former President Donald Trump, to block or set aside seven major immigration policies enacted or supported by Mr. Biden over the past year.
The states’ lawsuits have doomed a proposed 100-day deportation moratorium, suspended two rules aimed at limiting immigration arrests, forced border officials to reinstate the Trump-era policy of requiring some migrants to await their asylum hearings in Mexico and closed the Deferred Action for Childhood Arrivals program for so-called “Dreamers” to new applicants.
Republican-controlled states have also secured rulings to require the Biden administration to continue an emergency border order known as Title 42 that allows for the quick expulsion of migrants and to prevent it from continuing an exemption to that policy for unaccompanied migrant children.
On Thursday, the Biden administration suffered its latest legal setback when the Supreme Court rejected its request to allow officials to reinstate restrictions on immigration arrests, deciding instead to schedule oral arguments on the legal challenges against the policy in its December session.
State lawsuits against other Biden administration immigration policy priorities remain pending, including challenges against its decision to cease most border wall construction and its attempt to overhaul and speed up the asylum process along the U.S.-Mexico border.
Federal judges in Florida and Texas have also yet to rule on states’ requests to block the administration from operating a program that allows at-risk Central American children to come to the U.S. if they have family members here and stop certain releases of migrants in border custody.
Steve Yale-Loehr, a professor at Cornell University who studies U.S. immigration law, said federal policy-making on immigration is now primarily dictated by federal courts, not Congress or the executive branch.
“I think every major policy initiative by Biden that they plan to roll out in the next year is going to be certainly challenged in the courts, and the conservative states have done a good job of judge-shopping to find judges that are likely to agree with these conservative states,” Yale-Loehr said.
Abdullah Hasan, a White House spokesperson, said the Biden administration has faced “immense obstruction” from Republican state officials. “We’ve seen it time and again: Republican elected officials attempt to block nearly every step we take to rebuild the immigration system the prior Administration gutted, and then try to blame us for the chaos and confusion their actions cause,” Hasan told CBS News.
But Hasan argued the administration is still “making significant progress securing the border and building a fair, orderly, and humane immigration processing system,” citing efforts to curb human smuggling, expand legal immigration and enlist the help of other countries in the Western Hemisphere in reducing migration.
In an interview, Arizona Attorney General Mark Brnovich said the lawsuits he and other state officials have filed act as a “check” on federal immigration policies that he believes have encouraged illegal immigration and undermined public safety.
“I would prefer not to be having to sue the president of the United States, but when any president acts in a lawless manner, it is up to us to hold him accountable,” Brnovich, a Republican, told CBS News. “And the reality is that the federal government is at the height of its power when it comes to issues related to national security and border security, but the Biden administration is systematically failing to do its job.”
U.S. Department of Homeland Security (DHS) spokesman Luis Miranda said, “Litigation that seeks to interfere with our authority to secure our borders, enforce our laws, and stay true to our values is counterproductive.”
“We will continue to pursue every avenue within our authority to fulfill our national security and law enforcement mission and will defend our practices and policies in court, abiding by applicable court orders and the rule of law as we do so,” Miranda told CBS News.
Qian Weizhong/VCG via Getty Images
Efforts to hinder an administration’s immigration agenda through federal court lawsuits are not new. The Trump administration’s major policy changes, from its limits on legal immigration to asylum restrictions along the U.S.-Mexico border, were challenged and often blocked through lawsuits filed by Democratic-led states and immigrant rights groups, including the American Civil Liberties Union.
Many of the lawsuits seeking to derail Mr. Trump’s immigration policies were filed in federal courts with a strong likelihood of Democratic-appointed judges overseeing the cases, such as district courts in northern California, Hawaii and New York. Legal experts have called this strategy “forum-shopping.”
But legal experts said Republican-led states, particularly Texas, have turned “forum-shopping” into “judge-shopping” by filing lawsuits in divisions of federal courthouses, often in small cities, where all or the vast majority of cases are assigned to judges appointed by Mr. Trump.
The strategy has paid off. Trump-appointed judges are overseeing lawsuits over Title 42, the Remain in Mexico policy, limits on Immigration and Customs Enforcement arrests, Mr. Biden’s asylum overhaul and releases of migrants along the southern border under the parole authority.
In a statement, Texas Attorney General Ken Paxton pushed back against the accusations of “judge-shopping,” saying it’s a mistake to blame “Texas’s success on Trump judges rather than on this Administration’s failures.”
“The criticism that we’re pulling the judiciary into mere policy disputes or that we’re involved in forum shopping is inaccurate,” Paxton said. “First, we sue Biden when he breaks the law. The law requires him to protect and defend the border. It’s his — not our — policy decision to abandon and flout those duties.”
Brnovich, the Arizona attorney general, said it’s hypocritical for Democratic officials to criticize the Republican lawsuits against the Biden administration, citing the dozens of legal challenges that Democratic-controlled states filed against the Trump administration.
“No one, whether you’re a Republican or Democrat, should have an issue with the states pushing back against the overreach of the federal government,” said Brnovich, who is seeking to unseat Democratic Arizona Sen. Mark Kelly this fall.
Angela Kelley, who served as Homeland Security Secretary Alejandro Mayorkas’ senior counselor on immigration before her departure in May, said the litigation campaign by Republican officials often influenced the administration’s policy-making calculus, including by delaying certain priorities.
“It was pretty clear from day one, before the inauguration break was over, that the opponents of the administration wanted to disrupt and derail and deter us from our agenda,” said Kelley, who now serves as a chief advisor for the American Immigration Lawyers Association. “And given the appointment of judges from the previous administration and their careful selection of where to file their lawsuits, they absolutely had early successes.”
Despite the significant legal defeats, Kelley noted the administration has had some success when it has asked the Supreme Court to intervene, noting the high court rejected Republican-led states’ bid to revive restrictive Trump-era green card rules and their arguments in favor of keeping the Remain in Mexico policy in place.
Yale-Loehr said he expects lawsuits will continue to shape federal immigration policy, bedeviling Mr. Biden and future presidents, unless Congress inhibits the power of judges to block nationwide initiatives or passes a broad reform of the U.S. immigration system, a prospect that has remained elusive for decades amid intense partisanship.
However, “that’s not the way our government is supposed to run,” Yale-Loehr added, saying the role of the federal court system should be limited to determining whether the actions of the president and Congress are lawful and constitutional.
“From the American public’s perspective, when people disagree with a policy, theoretically they can vote that person out of office, whether it’s a member of Congress or the president,” Yale-Loehr said. “But when the judges are making a policy decision that the public disagrees with, they cannot vote that judge out of office.”
