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States Band Together to Block Immigration Policy

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States Band Together to Block Immigration Policy
Asylum-seekers receive food as they wait for news of policy changes at the border in Tijuana, Mexico, in February 2021. At least 27 immigration policies and orders issued by President Joe Biden’s administration have been challenged by individual states or coalitions.
Gregory Bull The Associated Press

Editor’s note: This story was updated May 9, 2022, to correct Cris Ramón's title.

On the morning of April 28, Texas Republican Attorney General Ken Paxton filed his 11th immigration-related lawsuit against the Biden administration, submitting his paperwork before a U.S. District Court judge in the panhandle city of Amarillo and then issuing a news release about it.

That same day, a coalition of 14 other red states filed a similar lawsuit in an Arizona federal district court.

The coordinated effort aims to block a new policy allowing individual U.S. asylum officers—rather than immigration judges—to rule on the claims of newly arrived immigrants. It’s also part of a trend that’s taken hold among GOP attorneys general in the past year, and one they borrowed from their blue-state counterparts.

During President Donald Trump’s term, Democratic attorneys general repeatedly sued to keep him from relaxing environmental regulations or allowing new fossil fuel exploration, but they also filed more than a dozen suits over immigration policy.

Since President Joe Biden’s inauguration in January 2021, red states have filed suits over mask mandates, COVID-19 vaccine rules for large employers and the social cost of greenhouse gas emissions, but appear especially interested in thwarting migration over the U.S.-Mexico border. Republican attorneys general have filed more than a dozen multistate lawsuits in the past year to block Biden immigration policies they don’t like.

The tactic of multistate coalitions blocking federal policies or actions has become a powerful tool in the arsenal of state attorneys general, according to Paul Nolette, chair of the political science department at Marquette University. Nolette has been tracking multistate litigation from state attorneys general since 2007 and is the creator of attorneysgeneral.org, a website dedicated to the data.

He said states wanting to block Biden’s immigration policy simply have to go to a favorable district judge, preferably a conservative one appointed by a Republican president, present their argument and ask for a preliminary injunction. If a judge grants the injunction, the policy is halted, Nolette said. 

“This is the game they play, and getting a preliminary injunction is the key,” Nolette said. “Especially since district courts are increasingly willing to have nationwide injunctions, it's a good way to get big bang for your buck.”

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Source: Stateline research of websites, databases, court documents and interviews with attorneys

Since Biden took office, Republican-led states have filed some 27 lawsuits or appeals seeking to block immigration actions taken by the administration, according to Stateline research. At least 15 were multistate efforts by Republican attorneys general.

The administration’s proposed Asylum Office Rule, set to take effect May 31, is meant to reduce the average wait time for asylum-seekers to receive a decision in their case from years to months, according to Homeland Security Secretary Alejandro Mayorkas. As of March, immigration judges had nearly 1.7 million pending cases—the largest backlog in the country’s history, according to the Transactional Records Access Clearinghouse at Syracuse University.

“The last thing Texas needs is for this Administration to make it easier for illegal aliens to enter the U.S. and obtain asylum through false claims and less oversight,” Paxton wrote in a news release shortly after filing the lawsuit. “It’s true that our immigration system is extremely backlogged. But the answer is to secure the border, not overwhelm it even more by enacting cheap, easy incentives for illegal aliens to get into the United States.”

Multistate Litigation

The first multistate lawsuit over immigration was filed in 2014 by 23 red states led by Texas, according to Nolette’s research. The states successfully blocked a directive by the Obama administration called Deferred Action for Parents of Americans and Lawful Permanent Residents. DAPA, as the policy was known, allowed noncitizens with U.S. citizen children of any age to apply for legal residency.

State attorneys general from 17 blue states, including California and New York, banded together to make arguments in support of DAPA. Their efforts were futile against the incoming Trump administration, which rescinded the policy in 2017.

Multistate litigation aimed at blocking immigration policy went from this single case during the Obama years to 18 during the Trump administration. The biggest case was filed by Hawaii and supported by 18 blue states opposing the administration’s travel ban against residents of Muslim-majority countries. Attorneys general in 17 red states supported the ban, which was ultimately upheld by the Supreme Court.

“It's become institutionalized and almost expected at this point that some multistate coalition of AGs is going to push back against any new regulatory announcement coming from Washington,” Nolette said.

He traces the start of multistate litigation to the early 1980s, when state attorneys general led the first coordinated efforts against the Reagan administration’s environmental and antitrust policies. Almost half of all multistate lawsuits against the federal government tracked by Nolette have been filed against the U.S. Environmental Protection Agency.

Between 1980 and 2016, multistate lawsuits averaged about seven a year, but they shot up to an all-time high of 40 in 2017. Trump had 157 multistate lawsuits filed against his administration in four years.

By comparison, under the George W. Bush and Obama administrations, a total of 76 and 78 multistate lawsuits were filed against them, respectively, in the eight years each was in office.

“It was basically double the lawsuits in half the time,” Nolette said. “We had Democratic AGs practically every week, bringing lawsuits against the administration across a range of issues.”

Partisan Judges

Many cases filed during the Trump administration are still pending, but of the 74 that had been heard in U.S. district court as of October, 57 had been before a judge nominated by a Democratic president, according to attorneysgeneral.org.

Democratic attorneys general often filed lawsuits challenging Trump-era policies in the U.S. Court of Appeals for the 9th Circuit headquartered in San Francisco, where liberal-leaning judges were more amenable to their arguments. In November 2020, the 9th Circuit had 16 out of 29 judges appointed by a Democratic president, the most of any appeals court in the country.

Now the battleground has shifted to Texas, where a judicial assignment system in some U.S. district courts allows plaintiffs to essentially pick their judges, and where a federal circuit court has been yanked further to the right with Trump’s appointees, according to Cris Ramón, an immigration consultant based in Chicago.

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Paxton, the Texas attorney general, had filed 27 lawsuits against the Biden administration as of last month, continuing the tradition set by his predecessor, Republican Gov. Greg Abbott, who quipped, “I go into the office, I sue the federal government and I go home,” in 2013 when he was attorney general during the Obama era.  

Ramón said the nation’s immigration problems will not be solved in the courts, and Congress should be the place where the opposing sides hash out a permanent fix.

“The people who we elected to pass legislation and make changes aren’t doing that with immigration,” Ramón said. “We’re allowing judges to do that, and I don’t think that judges are necessarily happy to do it.”

Successful Litigation

About a quarter of the 106 state and multistate lawsuits against the Biden administration have been over immigration, according to Stateline research. Only four of the immigration suits have been successful, according to Jessica Bolter, associate policy analyst at the Migration Policy Institute, a research organization.

Among the GOP wins: Texas successfully challenged a 100-day deportation moratorium issued the day Biden was inaugurated. Texas and Missouri blocked the so-called Remain in Mexico policy that was heard in late April by the U.S. Supreme Court. Texas and Louisiana partially blocked new directives establishing priorities for who should be picked up and deported. Arizona also partially blocked similar priorities.

Bolter said it’s no coincidence that this new phenomenon of states banding together to challenge federal action on immigration comes at a time when Congress has been extremely gridlocked on the issue.

She said the lack of action by Congress has caused the executive branch to step in and try to make changes where it can. But executive action reflects the immigration views of whichever party holds the White House, whereas a congressional solution might come from compromise between the two parties.

“This has resulted in more lawsuits and in courts increasingly weighing in on immigration policy, leading to, ultimately, a really confusing immigration policy landscape and one that can kind of change at the drop of a hat,” Bolter said.

Other than the legal precedent sometimes set by the partisan lawsuits that succeed, she said, a larger lasting effect has been a diminution of trust in government and the immigration system.

“It makes it harder, not just for immigrants to understand what's going on, but also for the U.S. public to understand what's going on,” she said. “And it kind of leads to this sense that the government isn't able to successfully manage or control immigration.”

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