US Immigration Policy Dictated by GOP as Biden Thwarted in Court

Republican state officials are shackling the Biden administration’s immigration policies with an aggressive legal campaign that’s racking up bigger victories than some court watchers expected.

Attorneys general bagged one of their biggest wins last month, persuading a federal court to block the planned termination of Title 42, a pandemic-related measure that’s been used to turn away asylum-seekers and other migrants at the border since 2020.

The case is one of many in which Republican attorneys general have derailed, at least temporarily, the administration’s approach to immigration. Those legal challenges, paired with Democrats’ failure to advance legislation on Capitol Hill, have handcuffed the White House as it tries to fulfill President Joe Biden’s pledge to overhaul the US immigration system and border management.

Biden, attempting to navigate the immigration policy thicket, has run into Republican state officials at every corner—with legal attacks resulting in several court victories that have been stunning in scope. Some state GOP officials behind the biggest cases are simultaneously running for federal office.

Republican AGs’ lawsuits have been “even more aggressive than what we saw previously: more quantity and, in many ways, more quality,” said Marquette University political science professor Paul Nolette, who tracks litigation by state officials.

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State AGs have targeted the Biden administration’s 100-day deportation pause, its decision to halt most border wall construction, the Department of Homeland Security’s immigration enforcement priorities, and the agency’s revocation of several Trump-era policies, among other moves.

“We are doing everything we can do make sure the law is being followed and the Biden administration does everything it can to protect American citizens,” Arizona Attorney General Mark Brnovich (R) said in an interview.

Top Target

State AGs on both sides of the aisle have become increasingly well-organized in challenging federal government decisions over the past decade, and immigration policy is a natural top target for Republicans attuned to the political dynamics, Nolette said.

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“It’s not just a hot-button issue, but a cultural issue,” he said. “That’s been a continuing political football that Republicans more generally have been really pushing Biden on. This is a way for the AGs to really get involved in an important way.”

Brnovich, who is vying for a seat in the US Senate, took the unusual step of arguing a high-stakes Supreme Court case himself earlier this year, rather than leaving the task to a specially trained deputy. That’s evidence of how seriously he takes immigration matters, he said.

The case he argued involves the Trump-era “public charge” regulation, which aimed to turn away immigrants needing food stamps, housing assistance, and other aid. Arizona sought to keep the rule in place after the Biden administration abandoned it. The Supreme Court has yet to hand down a decision.

The Supreme Court is also weighing state AGs’ fight for the Trump-era “Remain in Mexico” program, which requires asylum-seekers to wait across the border for months while their claims are reviewed in makeshift tent courts.

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Texas Attorney General Ken Paxton (R) and Missouri Attorney General Eric Schmitt (R), who is also running for a US Senate seat, sued over the Biden administration’s decision to end the program, and a lower court ordered it reinstated—a move the Supreme Court declined to block last year. The justices are poised to issue a final decision in the case this summer. Their term is in its final weeks.

‘Litigation Sand’

States have had a series of high-profile wins but some dead ends. A district court, for example, rebuffed Arizona’s novel environmental law argument against recent border policies. An appeals court ruled against state AGs, too, leaving intact the Biden administration’s immigration enforcement priorities.

Critics say Republican AGs’ recent attacks are rooted in politics rather than legal substance.

“It is meant as a strategy to draw media attention to a political issue, as well as to functionally throw litigation sand into the gears of the federal government’s operation,” said Gregory Z. Chen, senior director of government relations for the American Immigration Lawyers Association.

A multistate effort to sideline the Biden administration’s new rule to speed up the clunky asylum process is an example of the GOP obstructing efforts to address challenges at the border, Chen said. Courts will decide as soon as next month whether to hamstring the new regulation while litigation plays out.

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Immigrants’ rights organizations and other nonprofits are left playing defense against AGs’ attacks, when they’d like to go on offense on other matters. For example, many groups are spending valuable resources to help fend off attacks on the asylum rule despite their deep concerns that the rule isn’t adequately protective.

“We have legitimate beef with the asylum rule,” said Karen Tumlin, an immigration litigator who founded the nonprofit Justice Action Center. “But on the other hand, we don’t want the entire thing to be blown away.”

Trump’s Judicial Legacy

Republican state AGs’ victories on Title 42, which is being appealed, and the “Remain in Mexico” program have served as harsh reminders to immigrants’ rights advocates of just how much power the state officials wield.

“I am not surprised that they are ferociously filing case after case, that I expected,” Tumlin said. “The surprise is how far the opinions, particularly from the district court judges, have gone.”

The district court decision reviving “Remain in Mexico,” for example, required US officials to negotiate with a foreign government and reinstate a program the administration found to be inherently problematic, she said.

Tumlin and other litigators attribute the Republican AGs’ win rate, in part, to what she calls the “Trump-ified” federal courts. As president, Donald Trump made more than 230 judicial appointments—accounting for more than a quarter of active federal judges. States have managed to steer many of their cases into favorable jurisdictions.

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“It’s fair to say that there are a higher number of President Trump-appointed federal judges that may, with their ideological or political persuasion, be more receptive” to Republican AG arguments on immigration, Chen said. But, he added, “all federal judges are going to be bound by existing law that grants substantial deference” to the executive branch.

Brnovich, whose wife is a Trump-appointed federal judge, rejected the argument that Republican AGs have a political advantage in court.

“I am happy that we have judges understand that their role is not to make the law or to have their personal preferences impact the law,” he said. “It is to enforce the law as it is. The reason why the Biden administration is losing in court is because they’re wrong.”

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloombergindustry.com

To contact the editors responsible for this story: Robin Meszoly at rmeszoly@bgov.com; Sarah Babbage at sbabbage@bgov.com