Immigration Plan Advancing in Congress Would Give AGs More Sway

A GOP proposal billed as a crackdown on migrant-linked crime would have sweeping effects on immigration litigation, reshaping how judges review disputes and giving state officials a fast track to challenge policies in federal court.

Republicans now lead both the House and Senate and are kicking off the new Congress with legislation named for Laken Riley, a Georgia nursing student killed last year by an immigrant in the country illegally.

The proposal (H.R. 29) aims to lock up noncitizens charged with shoplifting and other theft-related crimes, but it goes much further — giving state attorneys general standing to challenge an array of federal immigration actions, including deportation protections and legal visas.

The bill, which stalled last year, faces more favorable odds now that Republicans control both chambers and many Democrats are eager to show they’re tough on illegal immigration. The House passed it Tuesday, and the Senate is set to take an initial vote Thursday.

Immigration lawyers and advocates warn that the legislation would hamstring federal officials by allowing state AGs to challenge their every move, down to individual detention and release decisions.

“It raises constitutional questions about the division of power and who gets to decide questions about immigration law that would eventually have to be answered by the Supreme Court,” said Aaron Reichlin-Melnick, a senior fellow at the American Immigration Council.

Broader Impacts

The measure would supercharge the ability of state AGs, already a thorn in the US government’s side on immigration policy, to challenge federal actions in court.

The bill would give states an explicit path to court when they’re harmed by federal detention and release decisions of individual immigrants and when federal officials aren’t fulfilling their duty to screen people seeking to enter the US.

It would also give states a legal cause of action when federal officials broadly grant protections known as parole and when the US doesn’t impose visa sanctions on countries that don’t cooperate with the US on deportations. Federal judges would have to expedite consideration of cases brought under the bill.

“States face the brunt of this and should be able to push back against a federal government that’s not doing its job,” said Lora Ries, director of the Border Security and Immigration Center at the Heritage Foundation, which favors stricter immigration enforcement.

Other observers warn the legislation would allow states to second-guess decisions of immigration officers. And it would open the possibility that international diplomacy around visas is dictated “not by the executive branch, but individual attorneys general,” Reichlin-Melnick said.

State AGs could sue, for example, over a decision by the Department of Homeland Security to release a migrant on bond—whether or not detention beds are available. And if a country refuses to accept the deportation of a foreign worker charged with a crime while on a temporary visa, a state could ask a federal court to block an entire category of visas for that country.

The legislation’s blanket standing for states would also create tension with a 2023 US Supreme Court ruling that rebuffed their argument for standing in challenging federal enforcement priorities. The justices may ultimately have to reassess that ruling if the bill passes. If not overturned, that would be “a recipe for chaos in the federal courts,” the National Immigration Law Center said in a statement on the bill.

In cases of individual immigrants accused of crimes, the bill would take away any discretion from judges on whether or not to order an immigrant detained “over a petty theft she may or may not have done,” immigration attorney Brad Bernstein said.

The approach would also undermine due process for accused immigrants, Democratic Caucus Chair Pete Aguilar (D-Calif.) said.

“We believe in the fundamental principle that people accused of crimes have the ability to respond, and that doesn’t mean that if you’re accused of a crime that you should be deported,” he said during a press conference Tuesday.

On the Hill

Republicans are using the bill to make an aggressive opening play on immigration as they prepare for a trifecta of power in Washington once President-elect Donald Trump takes office later this month. And they’re trying to squeeze Democrats, who’ve taken political hits on immigration policy amid record migrant encounters for the first three years of President Joe Biden’s term.

Early Border Bill Unites GOP, Tests Democrats on Charged Issue

Forty-eight Democrats crossed the aisle to pass the bill in the House earlier this week, an increase from the 37 who backed it last spring. The Senate will need the support of eight Democrats or independents and all Republicans to advance the bill during an initial vote Thursday.

Key lawmakers have already announced their support. Sens. John Fetterman (D-Pa.) and Ruben Gallego (D-Ariz.) joined Senate Republicans in introducing the bill. Fetterman argued on Fox News that Democrats will show voters they don’t care about illegal immigration if they can’t pull together the votes to get the bill passed.

Sen. Gary Peters (Mich.), the top Democrat on the Homeland Security and Governmental Affairs Committee, also said he plans to support it. Peters is up for reelection next year. And Sen. Elissa Slotkin (Mich.) supported the bill when she was a member of the House.

The Senate’s amendment process may sway the number of Democrats who ultimately support the bill. If Republicans permit votes on amendments, which remains to be seen, that could provide some political cover for Democrats who want to show they favor a crackdown on immigration but don’t support the breadth of the bill.