At least a dozen national border or immigration-related measures have been contested in federal court by Republican-led states as part of an aggressive legal campaign to stall key components of President Biden’s immigration plan.
Seven significant immigration policies implemented or supported by Mr. Biden over the past year have been blocked or overturned by federal judges, all but one of whom were appointed by the former President Donald Trump, thanks to officials in Arizona, Missouri, Texas, and other GOP-controlled states.
The lawsuits filed by the states have put an end to a proposed 100-day moratorium on deportations, suspended two regulations meant to reduce immigration arrests, compelled border officials to reinstate the Trump administration’s requirement that some migrants wait in Mexico while their asylum claims are heard, and closed the Deferred Action for Childhood Arrivals program for so-called “Dreamers” to new applicants.
Additionally, Republican-controlled states have obtained orders requiring the Biden administration to uphold the emergency border order known as Title 42, which permits the swift expulsion of migrants, and barring it from upholding a provision that exempts unaccompanied migrant children.
The Supreme Court turned down the Biden administration’s request to reinstate curbs on immigration arrests on Thursday, choosing instead to schedule oral arguments on the legal challenges to the policy for its session in December.
This was the administration’s second legal setback.
State lawsuits challenging the Biden administration’s efforts to modify and expedite the asylum process at the U.S.-Mexico border, as well as its decision to halt most border wall construction, are still unresolved.
Federal judges in Florida and Texas have also not yet made decisions regarding requests from states to stop the administration from running a program that permits at-risk Central American children to enter the country if they have family members already living here and to halt some releases of migrants detained at the border.
According to Cornell University professor and expert on U.S. immigration law Steve Yale-Loehr, the courts, not Congress or the executive branch, now control most federal immigration policy.
The conservative states have done a good job of judge-shopping to find judges who are likely to agree with these conservative states, according to Yale-Loehr.
“I think every major policy initiative by Biden that they plan to roll out in the next year is going to be challenged in the courts,” Yale-Loehr said.
Republican state officials have “immensely obstructed” the Biden administration, according to Abdullah Hasan, a White House spokesperson. Republican political leaders try to obstruct almost every move we make to restore the immigration system that the previous Administration destroyed, and then they try to pin the blame on us for the ensuing uncertainty and turmoil, Hasan told CBS News.
Hasan cited initiatives to stop human smuggling, increase legal immigration, and enlist the aid of other Western Hemisphere nations in order to reduce migration as evidence that the administration is still “making significant progress securing the border and building a fair, orderly, and humane immigration processing system.”
Arizona Attorney General Mark Brnovich claimed in an interview that the legal actions brought by his office and other state officials serve as a “check” on federal immigration laws that, in his opinion, have fostered illegal immigration and jeopardized public safety.
Brnovich, a Republican, said CBS News, “I would prefer not to be having to sue the President of the United States, but when any president acts in an illegal fashion, it is up to us to hold him accountable.” “And the fact is that the Biden administration is consistently failing to perform its job even though the federal government is at the height of its power when it comes to matters linked to national security and border protection,” the author continued.
“Litigation that seeks to interfere with our power to safeguard our borders, enforce our laws, and stay loyal to our principles is futile,” U.S. Department of Homeland Security (DHS) spokesman Luis Miranda said.
According to Miranda, who spoke to CBS News, “We will keep pursuing every option at our disposal to carry out our national security and law enforcement mandate, and we will defend our methods and policies in court, following by appropriate court orders and the rule of law as we do so.”
Legal actions brought in federal courts to obstruct an administration’s immigration policy are not new. A number of lawsuits filed by Democratic-led states and immigrant rights organizations, such as the American Civil Liberties Union, challenged and frequently blocked the Trump administration’s major policy changes, from its restrictions on asylum along the U.S.-Mexico border to its limits on legal immigration.
A significant number of the legal actions meant to thwart Mr. Trump’s immigration policy were brought in federal courts where it was likely that judges selected by the Democratic Party would preside over the cases, such as district courts in northern California, Hawaii, and New York. This tactic is known in the legal community as “forum-hopping.”
However, according to legal experts, Republican-led states—particularly Texas—have transformed “forum-shopping” into “judge-shopping” by bringing lawsuits in federal courthouse divisions, frequently in small cities, where all or a disproportionately large number of cases are assigned to judges who were appointed by Mr. Trump.
The plan worked well. Cases involving Title 42, the “Remain in Mexico” policy, restrictions on ICE arrests, Mr. Biden’s overhaul of the asylum system, and the release of migrants along the southern border under parole authority are being supervised by judges who were selected by Trump.
Texas Attorney General Ken Paxton responded to the claims of “judge-shopping” in a statement, saying it’s incorrect to attribute “Texas’s success to Trump judges rather than this Administration’s failures.”
The accusations that we are engaging in forum shopping or involving the judiciary in trivial policy issues are untrue, according to Paxton. “First, when Biden violates the law, we sue him. He must safeguard and defend the border as required by law. His decision to ignore and disobey such obligations is his, not ours.”
Arizona’s attorney general, Brnovich, criticized Democratic leaders for being disingenuous in their criticism of the Republican lawsuits brought against the Biden administration, pointing to the numerous legal challenges Democratic-controlled states brought against the Trump administration.
No one, Republican or Democrat, should object to the states resisting the federal government’s overreach, according to Brnovich, who is running this year against Democratic Arizona Sen. Mark Kelly.
Prior to her departure in May, Angela Kelley served as Senior Counselor on Immigration for Alejandro Mayorkas, Secretary of Homeland Security, and claimed that the litigation campaign by Republican officials frequently affected the administration’s decision-making process, including by delaying some priorities.
The opposition to the administration’s agenda was “fairly obvious from day one, before the inauguration break was over,” said Kelley, who is currently the chief advisor for the American Immigration Lawyers Association. They undoubtedly had early successes given the appointment of judges from the previous administration and their careful choice of where to file their lawsuits.
Although the administration has suffered significant legal setbacks, Kelley noted that when it has asked the Supreme Court to intervene, it has had some success. She pointed out that the high court rejected Republican-led states’ arguments for maintaining the Remain in Mexico policy as well as their attempt to reinstate onerous Trump-era green card rules.
Yale-Loehr stated that unless Congress limits judges’ ability to thwart national initiatives or passes a comprehensive reform of the U.S. immigration system—a prospect that has proven elusive for decades amid intense partisanship—lawsuits will continue to shape federal immigration policy, frustrating Mr. Biden and future presidents.
However, Yale-Loehr continued, “that’s not how our government is meant to function,” adding that the federal court system’s responsibility should be restricted to evaluating whether the president and Congress’s acts are legal and constitutional.
According to Yale-Loehr, “from the standpoint of the American public, when people disagree with a policy, they may potentially vote that person out of office, whether it’s a member of Congress or the president.” But the people cannot remove a judge from office when they make a policy choice that they disagree with.