As the Biden administration has been working rapidly to undo key Trump-era border and immigration policies and replace them with more liberal policies, Republican state attorneys general have been working just as hard to push back against what they see as illegal actions that could hurt Americans and put them in danger.
“As attorney general I have certain tools in my toolbox, and I have said I am going to do everything I can to enforce the rule of law and to protect hard-working American taxpayers,” Arizona Attorney General Mark Brnovich said in an interview with Fox News.
Arizona currently has multiples lanes of litigation it is pursuing on both legal and illegal immigration. One of those is a lawsuit, with Missouri, over the administration’s narrowed interior enforcement guidelines for Immigration and Customs Enforcement (ICE).
That guidance, issued in February, narrows enforcement priorities to recent border crossers, national security threats and “aggravated felons.” While those outside of those categories are not ruled out from arrest or deportation, agents need pre-approval from superiors to arrest them.
That guidance for ICE was issued after Texas had sued the Biden administration over an initial plan to impose a 100-day moratorium on deportations. Texas won the lawsuit, and earlier this month the Biden administration announced it had abandoned the policy after the 100 day period had passed – marking the first legal victory for the GOP states.
“This is a big win for Texas and the nation. It sends a clear message to the Biden administration that they will not be able to violate federal immigration law and endanger the lives of Texans,” Texas AG Ken Paxton said in a statement last week. “This Administration’s failed policies have only exacerbated the crisis at our southern border, and further exhausted the regular duties of our law enforcement officers.”
“This is a big win for Texas and the nation. It sends a clear message to the Biden administration that they will not be able to violate federal immigration law and endanger the lives of Texans.”
— Ken Paxton, Texas attorney general
Texas Attorney General Ken Paxton speaks at a news conference in Austin, Texas, May 1, 2018. (Associated Press)
Having shot down the deportation moratorium, the states are now hoping to shut down other parts of the Biden immigration agenda – including the ICE rules they say amounts to the same policy as the deportation moratorium. The new ICE guidance has coincided with a dramatic decrease of arrests and deportations and the discovery process triggered by the lawsuit led to the release of an email that showed that ICE officials predicted such a drop in arrests would occur.
As part of that, the states have also been able to begin deposing officials, the first depositions of which were released this month — including an ICE official saying that the reason for the narrowing of enforcement was not due to limited resources, as the administration had claimed.
Texas, Arizona and Missouri have also taken aim at the Biden administration’s rollback of the Migrant Protection Protocols (MPP) — a Trump-era policy which kept migrants in Mexico as they awaited their hearings. Critics called it cruel and left migrants in danger, while supporters said it reduced the pull factors bringing migrants north.
That effort by the states has recently included filing a preliminary injunction and requesting the Supreme Court intervene in the lawsuit.
“We’re asking the court to side with our office and issue a preliminary injunction, which would require the Biden Administration to reinstate the Migrant Protection Protocols,” Missouri Attorney General Eric Schmitt told Fox News. “My office will never back down from fighting human trafficking and ensuring that all six million Missourians are safe.”
“My office will never back down from fighting human trafficking and ensuring that all six million Missourians are safe.”
— Eric Schmitt, Missouri attorney general
Missouri Attorney General Eric Schmitt speaks during a news conference in Washington, D.C., Sept. 9, 2019. (Getty Images)
The claim by the states opposing the ICE guidance and the rollback of MPP is that they are not only illegal, but that they are fueling the crisis at the southern border and putting Americans in danger by either releasing, or keeping, criminal illegal immigrants on the streets. They also claim that it increases costs such as healthcare, education and public assistance in their states.
“Practically speaking, the result of what the Biden administration is doing, it is literally slashing the amount of people being deported, slashing amount of arrests and it literally means people that are dangerous, people who are felons are being released into our communities, so that is a threat to every neighborhood and every person,” Brnovich said.
“People that are dangerous, people who are felons are being released into our communities, so that is a threat to every neighborhood and every person.”
— Mark Brnovich, Arizona attorney general
Separately, a coalition of 11 Republican states have sought to intervene to defend the Trump-era public charge rule — which barred green cards for legal immigrants on temporary visas deemed likely to be reliant on welfare. The rule was challenged in a lawsuit during the Trump administration. The lawsuit carried into the Biden administration, which has declined to defend the rule, arguing it “is neither in the public interest nor an efficient use of limited government resources.”
Meanwhile, Texas has launched other lawsuits, including suing the administration for increasing the risk of COVID-19 by allowing thousands of migrants in, often in packed facilities.
“Instead of using the CDC’s authority to prevent the introduction of covered aliens into the United States during a pandemic, Defendants have chosen to take courses of action that have resulted in the release of tens of thousands of aliens into Texas and the United States,” the lawsuit says. “Absent this Court’s intervention, such releases will continue for the foreseeable future.”
Texas and Louisiana both sued the Department of Homeland Security (DHS) earlier this month for its alleged refusal to take criminal illegal immigrants into custody, as part of the ICE interim guidance.
Arizona has also sued over the Biden administration’s ending of border wall construction, claiming that the result has been environmental harm as hundreds of thousands of migrants make the journey and cause environmental damage on the way.
The legal push by Republican states is in many ways a flip side of what Democratic states did during the Trump administration — launching numerous lawsuits against Trump-era policies, particularly on immigration. Those efforts regularly succeeded in gumming up the cogs of policy.
Brnovich says it is different this time, as this isn’t about policy difference but legality over what he says is an effort by the Biden administration to unilaterally write the law.
“I start with the basic fundamental principle that the rule of law has to mean something, and if people don’t like the law or don’t like a policy, in this country we have elections you change leadership and you can change laws,” he said. “But no person, and especially the president, is a king or dictator, they cant unilaterally write the law and I believe on a fundamental level that the Biden administration is literally disregarding the law, and there is a basic fundamental question of whether the President of the United States should be able to do that — and we obviously think ‘no.’”