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Of course people are harassing the Bexar County Sheriff’s Office now

by Charles Kuffner.

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This is the world we live in.

Hate mail and calls are rushing into the Bexar County Sheriff’s Office after Sheriff Javier Salazar announced an investigation into how 48 South American migrants were “lured” onto a flight to Martha’s Vineyard.

A sheriff’s office spokesman said the agency received an influx of calls to both the dispatch and administrative offices, along with hateful emails.

He said precautionary measures will be taken for the safety of all personnel, as is done in any instance when the office receives “threats.”

On Monday, the sheriff said its organized crime division is working to determine what crimes were committed — possibly human trafficking — in Bexar County by a person who was paid a fee to recruit 50 migrants on Sept. 14 from the city’s Migrant Resource Center, 7000 San Pedro Ave.

Salazar said the migrants, many Venezuelan asylum-seekers, were preyed upon by someone from out of the state and offered jobs and a stay at a hotel in Massachusetts. Instead, they were shuttled onto two chartered jets for what was ultimately a photo opportunity, which the sheriff said was wrongdoing from a human rights perspective.

See here for some background. A reminder, in case anyone needs it, the people at the Bexar County Sheriff’s Office who are answering the phones and maintaining their Facebook and Twitter pages are not the decision makers. Hurling racist abuse and violent threats at them is like threatening a McDonald’s cashier because the Shamrock Shake is not a year-round menu item. Not that you should ever hurl racist abuse or violent threats at anyone, of course. You are a terrible person if you do those things, and if the Bexar County Sheriff’s Office decided to make what you said public and/or arrest you for the threats, they would be entirely justified in doing so. Also, too, there may also be a Homeland Security/Justice Department investigation of the DeSantis debacle, so just stopping the Bexar County Sheriff won’t be enough. So there. TPM has more.

Three migrants sue Ron DeSantis

by Charles Kuffner.

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I’m venturing a little from the core mission of covering Texas politics, but this was too irresistible, and there is a Texas connection.

Three Venezuelan migrants flown from San Antonio to Martha’s Vineyard last week filed a federal class-action lawsuit against Florida Gov. Ron DeSantis and other Florida officials Tuesday after the firebrand Republican’s move to transport migrants to a Democrat-controlled state sparked national controversy and a criminal investigation.

The lawsuit alleges the migrants were tricked into traveling on the airplane with false promises of money, work, housing and food.

DeSantis and other officials “designed and executed a premeditated, fraudulent, and illegal scheme centered on exploiting this vulnerability for the sole purpose of advancing their own personal, financial and political interests,” the suit claims.

DeSantis sent the planes to Martha’s Vineyard last week, mimicking Texas Gov. Greg Abbott’s monthslong practice of busing migrants to Democrat-led cities.

The suit alleges an elaborate scheme of unidentified individuals who lured migrants to travel on the planes. This included providing hotel rooms, McDonald’s gift cards, hundreds of dollars in cash and false promises of their ultimate destination. Migrants on the flight last week said a woman going by the name of Perla approached them outside San Antonio’s Migrant Resource Center and promised them jobs and shelter. Some said they were told they were going to Boston. But they arrived in Martha’s Vineyard, where local officials were caught off guard.

Republicans frequently refer to those taking the trips as “illegal immigrants,” but many of them are asylum-seekers who have been allowed to enter the country pending the outcome of their legal cases.

The suit says the unidentified individuals identified and targeted the migrants “by trolling streets outside of a migrant shelter in Texas and other similar locales, pretending to be good Samaritans offering humanitarian assistance.”

The migrants are asking to be awarded damages, as well as an injunction blocking DeSantis and the state from coercing immigrants to travel by “fraud and misrepresentation.”

See here for a bit of background. To really appreciate the absurdity of all this, as well as to highlight the Texas connection, here’s Josh Marshall:

This new video of Ron DeSantis’s 10th explanation of who he was funding in Texas really has to be seen to be believed. (Video below.) He says that he can’t ship migrants from Florida, as the state legislature authorized money to do, because there aren’t enough migrants coming into the state. There’s no “mass movement”. It’s just one or two people at a time driving to Florida. There’s no way to deal with that efficiently because there aren’t enough people. (Needless to say, however people are entering the state, if the state is overrun you just pick them up locally.) But, he says, he has “intelligence” operatives in Texas and they have learned that from “30% to 40%” of migrants in Texas intend to come to Florida.

In other words, there’s a tidal wave of people apparently about to come. Just not yet. Follow? Good.

So what to do? The most efficient way to deal with this is to go to Texas, profile people who seem likely to later come to Florida and fly them to states run by Democrats. That means “the chance they end up in Florida is much less.”

I guess if you want to be really, really generous you might say that people might be less willing to get bamboozled into being flown north if they’re already in Florida where they want to be as opposed to in Texas. But I think it goes without saying that the cost and inefficiency of the DeSantis plan is great enough to eliminate any benefit. And also: if you hoodwink migrants into going to Boston they can also just get on a bus to go to Florida. San Antonio to Miami is almost as far as Boston to Miami.

The barbarity of DeSantis’s actions should not obscure the hilarity of what is clearly an after the fact explanation of what happened and why? We can be pretty confident that the reason he’s resorting to this explanation is because he really, really doesn’t want to discuss who he’s working with in Texas. What individuals? What activist groups? Again, the explanation is absurd on its face. There’s no mass migration of migrants into Florida. So to move them at scale you need to get them in Texas and send them north.

As Marshall put it on Twitter, the “logical next step for DeSantis is to lure people in Caracas on to planes &ship them to Boston to truly prevent them from getting to Florida.” We truly live in amazing times.

Do I think this is likely to ever see the inside of a courtroom, let alone get to a trial or settlement? No, I seriously doubt it will survive a motion to dismiss. But it at least has accomplished the task of putting some focus on just how deranged and inhumane this stunt was. And maybe, the more DeSantis talks, the better it will be for Sheriff Salazar’s investigation. Daily Kos and Vice News have more.

Bexar County Sheriff to investigate the “immigrants lured to Martha’s Vineyard” saga

by Charles Kuffner.

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Good, because this whole thing is not only weird and creepy but it’s not hard to see how at least some aspects of it could have been illegal.

Sheriff Javier Salazar said Monday the Bexar County Sheriff’s Office is opening an investigation into whether people who “lured” migrants onto planes to Martha’s Vineyard did so “under false pretenses.”

Two flights of migrants departed San Antonio’s Kelly Field last week and landed at the Massachusetts resort island. A 27-year-old Venezuelan migrant told the San Antonio Report a woman paid him to recruit other migrants for the flights, telling him the people would be sent to “sanctuary states.”

Some of the migrants who made the trip said they were promised jobs, English classes and housing, none of which materialized.

“What infuriates me the most about this case is that here we have 48 people who are already on hard times, right?” Salazar said via a hastily called Zoom press conference.

“They are here legally in our country, they have every right to be where they are, and I believe they were preyed upon. Somebody … preyed upon these people, lured them with promises for a better life, which is what they were absolutely looking for.”

Florida Gov. Ron DeSantis has taken credit for the flights, saying, according to NPR, that the migrants who accepted the flights had been identified as wanting to relocate to Florida. The state has allocated $12 million “to facilitate the transport of unauthorized aliens out of Florida.”

None of the migrants who spoke to the San Antonio Report mentioned wanting to relocate to Florida or being asked whether they were planning to go to Florida. All said they were excited by the prospect of getting work.

Salazar said he believes there is a “high possibility” that Texas laws had been broken, and perhaps federal laws as well. “We will work with any and all agencies” that might also be investigating the incident, he said.

I don’t know what will come of this. If in the end this goes nowhere, it won’t surprise me. But the basic idea here is that these folks were transported across state lines under false premises, and that sounds awfully sketchy to me. There’s already been a lot of reporting and talk on Twitter about this – TPM has been on it and has cited the San Antonio Report a couple of times. There’s now a cash reward being offered to identify “Perla”, the person who initially approached the migrants with the false promises that led them to board the plane. I’ll be interested to see where this goes, that’s all I’m saying. And if there were laws broken along the way, sure seems to me that enforcing some consequences for that would have a bunch of salutary effects. NPR and the Trib have more.

Border and immigration news roundup

by Charles Kuffner.

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Same deal, too much news, yadda yadda yadda…

As Abbott orders state police to return migrants to border, critics on the right say it’s not enough.

Gov. Greg Abbott on Thursday authorized state law enforcement to return migrants suspected of entering the country illegally to southern ports of entry, though he stopped short of instructing officials to expel them from the country, as some conservatives have urged him to do.

It was not immediately clear what practical impact the directive would have. Under his border initiative, Operation Lone Star, Abbott has already ordered state police and Texas National Guard soldiers to apprehend those who cross the border and turn them over to federal immigration authorities, where they are then deported or released back into the country to await their asylum hearings.

The move comes two days after a group of local officials called on Abbott to declare Texas under “invasion” and start expelling migrants suspected of crossing the border illegally. That action would be unprecedented for the state, but some conservatives argue it would be justified because of the Biden administration’s push to roll back Trump-era border policies.

Even without deporting those who cross the border, Abbott’s order further expands Texas’ border security role, testing constitutional and legal limits that reserve those duties for the federal government.

[…]

An Abbott spokesperson did not respond to a request for comment. The governor previously expressed unease about the idea of state authorities unilaterally expelling migrants from the country, which he said could be legally tricky.

“There are federal laws that law enforcement could be prosecuted under if they were to take someone, without authority, and immediately return them across the border,” he said in April.

Some legal experts believe the “border invasion” strategy would run afoul of U.S. asylum laws, along with legal precedent that gives the federal government broad discretion in setting and enforcing immigration policy.

Justice Department lawyers used that argument last summer when they successfully sued Texas over Abbott’s push to stop and search drivers suspected of transporting migrants into the state.

The “invasion” argument would be an entirely new concept to immigration law, said Leon Fresco, an immigration attorney based in D.C. Fresco said Abbott’s order seems designed to invite litigation before state and federal courts, where Texas and other Republican-led states have increasingly turned to try and shape immigration law.

“They want to tee that issue up,” he said.

Cuccinelli and other supporters of local-led deportations say states have the constitutional right to protect themselves from “imminent danger” when they believe the federal government has failed to.

That argument may not hold up under an some readings of the Constitution, Fresco said, since it could mean the U.S. was technically under invasion between the writing of the Constitution and 1882, when the first federal law restricting immigration was enacted.

“How can an invasion be people coming to America without America’s permission, since that was the state of affairs in America for the first 100 years of the republic?” Fresco said.

I guess that depends on how seriously SCOTUS believes its own bullshit about how everything is rooted in 18th and 19th century traditions. I can’t wait to see the lawsuit that will happen when some overzealous state cop hauls a natural-born citizen to the border by mistake. In the meantime, if you look up the word “flailing” in the dictionary, you will see Greg Abbott’s picture. (Related story: Republican county officials in South Texas want Gov. Greg Abbott to deport migrants. Only the federal government can do that. What could possibly go wrong?)

Justice Department is investigating Texas’ Operation Lone Star for alleged civil rights violations.

The Department of Justice is investigating alleged civil rights violations under Operation Lone Star, a multibillion-dollar border initiative announced last year by Gov. Greg Abbott, according to state records obtained by ProPublica and The Texas Tribune.

The Legislature last year directed more than $3 billion to border measures over the next two years, a bulk of which has gone to Operation Lone Star. Under the initiative, which Abbott said he launched to combat human and drug smuggling, the state has deployed more than 10,000 National Guard members and Department of Public Safety troopers to the border with Mexico and built some fencing. Thousands of immigrant men seeking to enter the country have been arrested for trespassing onto private property, and some have been kept in jail for weeks without charges being filed.

Since the operation’s launch, a number of news organizations, including ProPublica and the Tribune, have outlined a series of problems with state leaders’ claims of success, the treatment of National Guard members and alleged civil rights violations.

An investigation by the Tribune, ProPublica and The Marshall Project found that in touting the operation’s accomplishments, state officials included arrests with no connection to the border and statewide drug seizures. The news organizations also revealed that trespassing cases represented the largest share of the operation’s arrests. DPS stopped counting some charges, including cockfighting, sexual assault and stalking, after the publications began asking questions about their connections to border security.

Another investigation by the Tribune and Army Times detailed troubles with the National Guard deployment, including reports of delayed payments to soldiers, a shortage of critical equipment and poor living conditions. Previous reporting by the Army Times also traced suicides by soldiers tied to the operation.

Angela Dodge, a DOJ spokesperson, said she could not “comment on the existence or lack thereof of any potential investigation or case on any matter not otherwise a part of the public court record.”

“Generally, cases are brought to us by a variety of law enforcement agencies — federal, state and local — for possible prosecutorial consideration following their investigation into a suspected violation of federal law,” Dodge wrote in an email. “We consider each such case based on the evidence and what can be proven beyond a reasonable doubt in a federal court of law.”

But at least two Texas agencies involved in carrying out the border initiative have pointed to a DOJ investigation in records obtained by ProPublica and the Tribune through the Texas Public Information Act.

In an internal email in May, DPS officials said that the DOJ was seeking to review whether Operation Lone Star violated Title VI of the Civil Rights Act of 1964, which bars discrimination on the basis of race, color or national origin by institutions receiving federal funding.

According to the emails, the federal government requested documents that include implementation plans, agreements with landowners and training information for states that have supported Operation Lone Star by sending law enforcement officers and National Guard members to Texas.

“If you are not already aware, the Civil Rights Division of the DOJ is investigating Operation Lone Star,” Kaylyn Betts, a DPS assistant general counsel, wrote in a May 23 email to a department official. She added that the agency should respond in a timely and complete manner.

In a letter sent Friday to the state’s attorney general, the Texas Department of Criminal Justice also cited a “formal investigation” of Operation Lone Star by the DOJ. The agency, which manages the state’s prison system, pointed to the investigation while fighting the release of public records sought by the news organizations.

In the letter, the department’s deputy general counsel wrote that the DOJ is investigating whether the state agency is subjecting people who are arrested as part of the border operation to “differential and unlawful conditions of confinement based on their perceived or actual race or national origin.”

I’m sure there’s plenty of evidence of unlawful behavior to be found. The big question to me is whether there are any sanctions that can be levied that would provide an incentive to not keep on doing that bad behavior. I don’t think the consequences that are currently available are up to the task, but I’m reluctant to push for there to be greater punishments given the way the federal government was weaponized against the personal enemies of the previous occupant of the White House. What we really need is greater respect for the law and the rule of law by the likes of Greg Abbott and the seething mob of radicals that influence his behavior. You can tell by the way I wrote that sentence that I’m not optimistic about that.

But there are consequences anyway, just not necessarily for those who need them: Understaffed, and under federal investigation, Texas juvenile detention system halts intake.

Texas’ juvenile detention system has shut its doors and won’t accept any new kids because it is “hemorrhaging” staff, and officials fear they can’t ensure the safety of the nearly 600 youths already in their custody.

According to a Texas Juvenile Justice Department letter, released to The Texas Tribune on Wednesday, the state’s five youth lockups were implementing emergency protocols “as the staffing strength at each secure facility becomes more grim.”

“The current risk is that the ongoing secure facility staffing issue will lead to an inability to even provide basic supervision for youth locked in their rooms,” Shandra Carter, the agency’s interim director, wrote to juvenile probation leaders across the state last week. “This could cause a significantly impaired ability to intervene in the increasing suicidal behaviors already occurring by youth struggling with the isolative impact of operational room confinement.”

The agency has 331 vacant positions for juvenile corrections officers and only 391 officers available to cover its facilities, an agency spokesperson said Thursday.

Minors sentenced to serve sentences at a TJJD facility will remain at local detention facilities, many of which have their own shortage of beds. In her letter, Carter said 130 juveniles were waiting in county facilities before intake was halted.

Carter said the agency is trying to restart intake as soon as possible by shifting people to different units, stopping intensive intervention programs for those who have committed violent crimes and looking into whether any youths could be eligible for release.

Texas’ juvenile lockups have long been plagued by physical and sexual abuse and dangerous environments for youths detained there. In October, the U.S. Department of Justice announced it was investigating whether the agency provides “reasonable protection from physical and sexual abuse by staff and other residents, excessive use of chemical restraints and excessive use of isolation.”

Carter was appointed to run the agency by the Texas Juvenile Justice Board in April, when former director Camille Cain quit without notice after four years at the helm. Hours before Cain’s departure was made public, Gov. Greg Abbott announced he was taking money from her troubled agency to continue funding Operation Lone Star, his multibillion-dollar border security operation.

Cain, who previously worked for Abbott, has not publicly discussed the reasons for her departure. Records obtained by the Tribune show Cain requested $31,225,360 in coronavirus relief funds from Abbott’s office in April, weeks before the governor took the same amount of money from her agency.

In a statement, TJJD said Thursday that the funds transferred out of their hands by Abbott had a “net-zero” budget impact. A spokesperson said the agency had used federal coronavirus relief funds to pay salaries that would typically have come from their general revenue.

“Once those expenditures from the federal dollars were made, we returned the same amount of funds from our General Revenue,” TJJD spokesperson Barbara Kessler said in the statement.

On Thursday afternoon, an Abbott spokesperson said the transfer of funds only acted as a placeholder and “did not impact the agency’s operational budget in any way.”

Sure, Jan. I mean, as noted in the story the TJJD is a stinking mess that really ought to be burned to the ground. It’s just that this isn’t a good way to do that. The priority still needs to be the welfare of the children in its care. But hey, issuing traffic tickets to people in border counties is a more urgent need, so here we are.

Federal lawsuit filed over Abbott’s border arrest fiasco

by Charles Kuffner.

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Meant to post this last week.

Three private defense attorneys, representing 15 migrant men arrested under Gov. Greg Abbott’s border operation, have filed a federal lawsuit seeking to end the governor’s policy of arresting migrants on criminal trespass charges, which the suit argues is racially discriminatory and infringes on the federal government’s immigration authority.

The lawsuit is the first to challenge Abbott’s Operation Lone Star in federal court, though defense attorneys have raised similar arguments in ongoing state litigation. The federal suit, filed Wednesday in the Austin-based U.S. District Court for the Western District of Texas, asks the court to scrap the governor’s border initiative altogether and order the release of migrants arrested under what it calls a “separate criminal prosecution and detention system.”

“The criminal process is rife with civil rights violations that have led to extreme, outrageous delays in cases that often end in dismissal or non-prosecution,” the lawsuit states, alleging state authorities filed “fraudulent probable cause affidavits,” failed to appoint attorneys for some defendants, and waited too long to file charges for numerous migrants.

Under orders from Abbott, state troopers and National Guard troops have arrested more than 3,000 migrant men since last July for allegedly trespassing on private property along the border. The operation has allowed Texas officials to jail migrants without running afoul of legal precedent that largely prevents states from enforcing federal immigration law.

The federal suit argues, however, that the entire program — including the trespass arrests — is “intended to rival or supplant federal immigration policy” and “interferes with federal enforcement priorities.” It argues that while the Biden administration has ordered immigration authorities to prioritize the most serious offenders, such as those with violent criminal history, Operation Lone Star “targets any and all suspected aliens without regard to dangerousness.”

Defense attorneys have used a similar argument in a pending state lawsuit that seeks to dismiss the cases of more than 400 migrants arrested under Texas’ border initiative. That lawsuit is modeled after an earlier case in which a Travis County judge tossed the trespass charge against Jesús Alberto Guzmán Curipoma, an engineer from Ecuador who was arrested in September.

Curipoma and his attorneys, Angelica Cogliano and Addy Miro, are also part of the federal lawsuit filed Wednesday.

[…]

The federal lawsuit further alleges that migrants are routinely arrested under Operation Lone Star without probable cause, in violation of the Fourth Amendment, and based on their perceived ethnicity and immigration status, resulting in “systemic discrimination.” The attorneys cited arrest affidavits filed by Department of Public Safety troopers that refer to detainees as Spanish or Hispanic and undocumented, or reference their country of origin.

Such statements “suggested that the individual’s perceived ethnicity was relevant to the DPS trooper’s understanding that that person was not welcome on the property,” the lawsuit reads.

The suit seeks monetary damages of $18,000 for each day that migrants were “unlawfully incarcerated or unlawfully re-incarcerated,” amounting to $5.4 million.

Much of the language from the lawsuit mirrors that of a complaint filed by civil rights groups with the U.S. Department of Justice last December, in which the groups urged the Biden administration to investigate Operation Lone Star. The Justice Department has yet to step in against Abbott’s initiative.

Meant to include this in that big roundup of border and legal stories, but I just missed it. My bad and my apologies. I don’t have anything to add other than I’m rooting for these plaintiffs and I’d like to see the Justice Department get off its ass and address that complaint from December.

Abbott sees another opportunity to hurt children

by Charles Kuffner.

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He is definitely making this a habit.

Gov. Greg Abbott wants to “resurrect” a court challenge over a 1975 Texas law withholding state funds from school districts for kids who were not “legally admitted” into the United States. That law was struck down by the Supreme Court in 1982.

He made the remarks in an interview Wednesday on the Joe Pags radio show.

“The challenges put on our public systems is extraordinary,” Abbott said before referencing Plyler v. Doe, the ruling that overturned the Texas law. “I think that we will resurrect that case and challenge this issue again because the expenses are extraordinary and the times are different than when Plyler v. Doe was issued many years ago.”

In that case, the court ruled that “education has a fundamental role in maintaining the fabric of our society,” and withholding it from the children of immigrants in the country without paperwork “does not comport with fundamental conceptions of justice.” People living without documentation in the country remain people “in any ordinary sense of the term” and are thus entitled to the same basic rights as anyone else in the country.

We’re going to see a lot more of this, because people like Abbott have realized that SCOTUS is now a cheat code for achieving whatever policy ends they want, without having to legislate them. You could say that the policy he seeks to achieve here is the reversal of one that had been done via the court and not the legislative process. The difference is that the litigants in the Plyler case had to win on the merits and could have lost. They didn’t get to count on having a majority on the court that was ideologically on their side and willing to use their power towards that end.

If you can’t see what a public policy disaster it would be, not to mention a moral catastrophe, to prevent children from getting an education, I’m really not sure what to tell you. As Stace says, it’s yet another reason to vote Abbott and the rest of his crew out of office in November. TPM, Daily Kos, the Texas Signal, and Amanda Marcotte have more.

A roundup of border and lawsuit stories

by Charles Kuffner.

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Too much news, not enough time…

New federal lawsuit seeks to halt Texas’ border trespassing arrests, give more than $5 million to illegally detained migrants.

In a new challenge to Gov. Greg Abbott’s controversial border security crackdown, a lawsuit filed Wednesday is asking a federal court to shut down Texas’ system of arresting migrants en masse along the Texas-Mexico border, and make the state pay more than $5 million to men who were illegally imprisoned under the system.

The lawsuit comes nearly a year after Abbott first ordered Texas police to arrest men suspected of illegally crossing the border on misdemeanor trespassing charges. The practice skirts constitutional restrictions that bar states from enforcing federal immigration law, and the lawsuit claims it discriminatorily targets mostly Black and Latino migrant men, usurps federal authority and is carried out in a way that violates the detainees’ rights.

“Under the guise of state criminal trespass law but with the explicit, stated goal of punishing migrants based on their immigration status, Texas officials are targeting migrants,” the filing stated. “Hundreds of those arrested have waited in jail for weeks or months without a lawyer, or without charges, or without bond, or without a legitimate detention hold or without a court date.”

Abbott’s trespassing initiative has drawn numerous state and local court challenges since it began in July, but this appears to be the first time attorneys are opposing it in federal court and seeking compensation for migrants swept into the governor’s “catch-and-jail” system. State and federal Democratic lawmakers and civil rights groups have also called on the U.S. Department of Justice to intervene in the Republican governor’s operation, but the federal administration has not acted.

The lawsuit was filed in federal district court in Austin by three private attorneys on behalf of 15 individual migrants and is asking for a class certification to include everyone arrested under Abbott’s trespassing initiative. The migrants are suing Abbott, the directors of the Texas Department of Public Safety and the Texas Department of Criminal Justice, as well as Kinney County, a rural border county which accounts for the large majority of trespassing arrests, and its sheriff.

The complaint asks the court to find that the operation violates federal law and order the state to stop the arrests. It also argues each migrant illegally detained so far should be given $18,000 for each day they were imprisoned beyond what is allowed by state law. The attorneys said it is a typical amount awarded by courts in cases of over-detention. They estimated the total cost would be around $5,400,000.

Previously, state district judges have found that hundreds of men were detained illegally after trespassing arrests, locked in prison for more than a month without any charges filed against them in violation of state law. Lawyers have argued the practice is still occurring. Wednesday’s filing also alleges men have been held for days or weeks after they post bond, their charge is dropped or their sentence is complete.

This is one possible way to get this heinous activity stopped. I don’t know if it’s the most likely way to succeed, but it is the most direct.

Texas Attorney General Ken Paxton sues Biden administration over asylum plan.

Texas Attorney General Ken Paxton filed his 11th immigration-related lawsuit against the Biden administration Thursday, asking a judge to block a plan to let asylum officers, rather than immigration judges, decide whether to grant some migrants’ asylum claims at the U.S.-Mexico border.

The new plan, scheduled to take effect May 31, “upends the entire adjudicatory system to the benefit of aliens,” the lawsuit says.

Earlier this year, the Biden administration finalized its plan to overhaul the process for migrants seeking asylum. The plan is supposed to reduce the average wait time for asylum-seekers to receive a decision in their case from five years to six months. 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.

Under the new process, asylum-seekers could be released into the country pending the outcome of their cases instead of being held in custody. If a migrant apprehended at the border claims they could be persecuted or tortured if they return to their home country, the asylum officer would decide if they have a credible claim. If the officer declines an asylum claim, migrants could appeal to an immigration judge.

“The current system for handling asylum claims at our borders has long needed repair,” Alejandro Mayorkas, the Department of Homeland Security secretary, said in a statement in March when the plan was finalized. “Through this rule, we are building a more functional and sensible asylum system to ensure that individuals who are eligible will receive protection more swiftly, while those who are not eligible will be rapidly removed.”

The lawsuit, filed in U.S. District Court in Amarillo overseen by Judge Matthew J. Kacsmaryk, also argues that the new plan violates the Constitution’s appointments clause because asylum officers are members of the general civil services and are not appointed like judges are.

[…]

Texas has filed nearly two dozen lawsuits in Texas-based federal courts, most of them led by Paxton, against the Biden administration over everything from federal mask mandates to the administration’s decision to halt the long-disputed Keystone XL pipeline. Trump-appointed judges have heard 16 of the cases and ruled in favor of Texas in seven. The other nine are pending as of March 15.

The state’s favorite targets have been Biden’s immigration policies, which have sparked seven of the 20 lawsuits in Texas courts. Paxton’s office has also sued the administration in Washington, D.C., federal courts and joined lawsuits led by attorneys general from other states.

Another day, another Trump judge. I’m sure I don’t have to tell you what is likely to come next. There’s plenty that the Biden administration could and should have done differently with immigration policy, but nearly everything he has tried to do has run into this kind of legal obstacle. It would be nice if Congress were to act, but that’s just not in the cards.

Judge orders Biden administration to send Central American migrants to Mexico rather than their home countries.

A federal judge in Louisiana on Wednesday temporarily blocked the Biden administration from increasing the number of deportations of some Central Americans back to their home countries and ordered the administration to instead send them to Mexico under an emergency health order used to expel migrants from the country, including asylum-seekers.

The judge also set a May 13 hearing to decide whether to block the administration from canceling the health order, known as Title 42. The judge indicated in the order that he plans to block the Biden administration from lifting Title 42 altogether.

During a phone call with reporters on Tuesday, a Biden administration immigration official was asked about the Louisiana judge’s impending order and said the administration plans to comply with it but remarked, “We really disagree with the basic premise.”

The Biden administration had announced that it will stop expelling migrants under Title 42 starting May 23 and instead go back to detaining and deporting migrants who don’t qualify to enter and remain in the U.S.

On April 3, Arizona, Missouri and 19 other states filed a lawsuit in the Western District of Louisiana, asking District Judge Robert R. Summerhays, an appointee of former President Donald Trump, to stop the Biden administration from ending Title 42.

Then on April 20, Fox News reported that the Biden administration had stopped using Title 42 for some migrants from certain Central American countries and instead was deporting them to their home countries. The next day, Arizona’s lawyers asked Summerhays to block the Biden administration from deporting those migrants and instead expel them to Mexico.

“A major media outlet reported that ‘Border Patrol is not using the Title 42 public health order to remove many migrants from the Northern Triangle countries of Guatemala, Honduras and El Salvador,’” Arizona’s request to the judge says, quoting the Fox News article.

Immigration officials had stopped expelling some single adult migrants from those countries under Title 42 and instead processed them under Title 8, a law that allows agents to deport migrants to their home countries without a court hearing. Deportations to those countries had historically accounted for 5% of cases. After the move to process migrants under Title 8, those cases increased to 14%, and the judge has ordered the government to aim for a return to that lower historic rate.

“We’re in a strange world right now where Greg Abbott is giving free bus rides to migrants and [Arizona Attorney General] Mark Brnovich has forced [the Department of Homeland Security] to deport fewer people,” said Aaron Reichlin-Melnick, an analyst with the American Immigration Council, a Washington, D.C., group that advocates for immigrants, referring to the Texas governor’s program that transports asylum-seeking migrants to the country’s capital.

See here for the background. I don’t even know what to say about this one. I do know that Texas filed its own lawsuit over Title 42. At least that makes sense to me.

U.S. Supreme Court hears arguments on whether Biden can toss Trump’s “remain in Mexico” policy.

The U.S. Supreme Court heard arguments Tuesday morning on whether the Biden administration can scrap a Trump-era policy that forces asylum-seekers to wait in Mexico as their cases make their way through U.S. immigration courts.

During two hours of arguments, the lawyers largely focused on a central question: Does the executive branch have the sole authority to set U.S. immigration policies?

The case reached the Supreme Court after a federal district judge in Texas last year ruled that the Biden administration violated immigration law by not detaining every immigrant attempting to enter the country. U.S. District Judge Matthew J. Kacsmaryk ordered the Biden administration to restart the Migrant Protections Protocols, also called “remain in Mexico,” which the Trump administration first implemented in January 2019 and Department of Homeland Security Secretary Alejandro Mayorkas canceled in June 2021.

That decision led Texas and Missouri to sue the Biden administration in April 2021, arguing that canceling MPP violated administrative law and that without the program, human trafficking would increase and force the states to expend resources on migrants — such as providing driver’s licenses, educating migrant children and providing hospital care.

The Biden administration argued it has the discretion to end the program and that it was not an effective way to deal with migrants seeking asylum.

[…]

The court’s liberal justices brought up the issue that the lower court’s decision has forced the White House to enter into a deal with Mexico — which has to agree to receive migrants sent over the border through MPP — when presidents historically have had broad authority on foreign policy issues.

“It puts the United States essentially at the mercy of Mexico,” Justice Elena Kagan said. “Mexico has all the leverage in the world to say, ‘Well, you want to do that, you want to comply with the court’s order? Here are 20 things that you need to do for us.’ Or maybe Mexico says, ‘No, we’d like to see you squirm and not be able to comply with the court’s order.’”

Elora Mukherjee, director of the Immigrants’ Rights Clinic at Columbia Law School, said the justices will have to wrestle with the fact that at any point Mexico could change its mind on whether it wants to continue to accept migrants expelled from the U.S. through the program.

“How can a court require the secretary for the Department of Homeland Security to dump busloads of people into Mexico if Mexico doesn’t comply?” she said.

Note that this is the same judge as in the second story. Do we let federal district court judges dictate foreign policy, which is what this is, or is that something Presidents are still allowed to do? I guess we’ll find out.

Gov. Greg Abbott asks for private donations to bus migrants to D.C. after criticism for using taxpayer money.

On Sunday, Gov. Greg Abbott appeared on Fox News touting a program he’s been pushing for weeks — sending migrants who enter into Texas to Washington, D.C., by charter bus.

But this time, Abbott asked Texans to personally contribute their own money to pay for the trips.

The decision to crowdfund the free bus trips for migrants is a new development from when he initially announced on April 6 that it would be paid for by Texas taxpayers. At the time, Abbott proudly presented the trips as a tough-on-immigration act of defiance against the Biden administration.

But the shift to ask private donors to pay for the charter buses comes as his plan has been increasingly praised as an act of generosity by Democrats, immigration rights groups and even the migrants who rode the buses, while those further to Abbott’s right politically have panned it as a misuse of taxpayer dollars that incentivizes migrants to cross into Texas.

“Congratulations to Governor Abbott,” Texas Rep. Gene Wu said Tuesday in a tweet. “Word will be passed from community to community that if you can just get to Texas, the Governor there will pay for your transportation anywhere in the USA.”

[…]

Mark Jones, a political science professor at Rice University, said the governor may be trying to escape blowback.

“I think it’s a quiet way of protecting himself from criticism that he’s using taxpayer dollars to provide free transport for undocumented immigrants,” Jones said. “Many conservatives pounced on him as all hat and no cattle, in that he was talking tough but in the end all his busing was going to do was provide a free trip for undocumented migrants to the East Coast that they otherwise would have had to pay for or that liberal nonprofits would have had to pay for.”

Abbott’s office has said at least 10 buses have arrived in the nation’s capital, but his office has not provided costs for the trips or the total number of migrants who have been transported.

During the 30-some-hour coach bus ride, passengers were provided with meals, the migrants said. Many of the buses’ passengers said they had saved up thousands of dollars just to arrive at the border and had little money left by the time they arrived in Texas.

“We are very thankful for all the help that has been given to us,” Ordalis Heras, a 26-year-old Venezuelan asylum-seeker, said earlier this month to the Tribune, hours after arriving in Washington on Abbott’s first bus from Del Rio. Heras, like many other passengers, had intended to travel north of Texas anyway.

“Frankly, we did not have the money to get here otherwise, so we are very thankful for the help,” she said.

A picture is worth a thousand words.

With the approval of Republican state leaders, Gov. Greg Abbott on Friday pulled nearly half a billion dollars from various state agency budgets to fund the swelling cost of deploying thousands of National Guard troops to the southern border.

The $495 million transfer comes weeks after Texas military leaders warned they would soon run out of money to fund the 10,000-member deployment under Abbott’s border initiative, known as Operation Lone Star. More than 6,000 National Guard soldiers are stationed along the border to help state troopers apprehend and jail migrants suspected of trespassing on private property.

State lawmakers last year allotted more than $400 million for the Texas Military Department to participate in the operation over the current two-year budget period, part of a $1.8 billion spending package that is also paying for a surge in Department of Public Safety troopers to the border region.

But in late January, facing funding shortfalls just several months into the fiscal year, Abbott and GOP state leaders shifted about $480 million from three state agencies to fund the National Guard deployment. The additional transfer Friday means it will cost Texas more than $1.3 billion to keep National Guard soldiers stationed along the border through the end of the fiscal year in August, more than triple the amount originally budgeted.

In all, Texas’ border security budget now stands at about $4 billion for the current two-year cycle, roughly five times the amount spent in 2019-2020. State leaders will need to drum up additional funds to keep National Guard soldiers stationed at the border beyond August.

Your tax dollars at work. You can do something about that this November.

Looks like Texas didn’t even have to sue to keep Title 42 from ending

by Charles Kuffner.

Comments are off for this post

A different Trump judge already put it in the bag for them.

A federal judge in Louisiana plans to temporarily block the Biden administration from ending Title 42, a pandemic-era health order used by federal immigration officials to expel migrants, including asylum-seekers, at the U.S.-Mexico border.

The temporary restraining order is expected in a lawsuit brought by Louisiana, Arizona and Missouri after the Centers for Disease Control and Prevention announced it would let the order expire May 23. The details of such a restraining order were not available late Monday.

“The parties will confer regarding the specific terms to be contained in the Temporary Restraining Order and attempt to reach agreement,” according to minutes from a Monday status conference in the case.

See here for the background. Sure is convenient to have a Trump judge for all purposes, isn’t it? Daily Kos has more.

Texas sues to stop the end of Title 42

by Charles Kuffner.

1 comment

Just another day at the office of destruction for Ken Paxton.

Best mugshot ever

Texas Attorney General Ken Paxton filed a lawsuit against the Biden administration on Friday to halt the Centers for Disease Control and Prevention from lifting Title 42, a pandemic-era health order used by federal immigration officials to expel migrants, including asylum-seekers, at the U.S.-Mexico border.

Title 42, which was enacted in March 2020 by the Trump administration, has been used 1.7 million times to expel migrants. Many of them have been removed multiple times after making repeated attempts to enter the U.S.

The CDC has the authority to enact orders like Title 42 under the 1944 Public Health Service Act, which gives federal officials the authority to stop the entry of people and products into the U.S. to limit the spread of communicable diseases. Part of the reason the agency is planning to lift the order soon is that COVID-19 cases have been decreasing and vaccinations have become widely available. The order is set to expire on May 23.

Paxton’s lawsuit argues that the Biden administration didn’t follow the administrative procedure laws needed to halt Title 42. The suit adds that if the Biden administration follows through with lifting the order, Texas will have to pay for social services for the migrants who enter the country.

“The Biden Administration’s disastrous open border policies and its confusing and haphazard COVID-19 response have combined to create a humanitarian and public safety crisis on our southern border,” the lawsuit says, which was filed in the Southern District of Texas in Victoria.

U.S. Health and Human Services Secretary Xavier Becerra, who is named as a defendant in the lawsuit, said on Thursday during a virtual event with the Council on Foreign Relations that health orders are not immigration policies.

“You don’t use a health law to deal with a migration challenge. You use migration laws to deal with migration challenges. You can’t use the cover of health to try to deal with a migration challenge,” he said.

[…]

The state has filed at least 20 other lawsuits in Texas-based federal courts, most of them led by Paxton, against the Biden administration over everything from federal mask mandates to halting the long-disputed Keystone XL pipeline. Judges appointed by former President Donald Trump have heard 16 of the cases and ruled in favor of Texas in seven. The other nine are pending, as of last month.

A majority of these lawsuits have been filed in courts in which the judge was appointed by Trump.

I mean, we could just wait until the combination of Democratic cold feet and empty both-siderism appeals forces Biden to back off anyway, but Paxton has never been one to wait for things to happen when he can find a friendly Trump judge to make them happen for him. Looks like I picked a bad day to quit sniffing glue. The Chron has more.

Abbott’s awesome border “emergency” cash-a-palooza

by Charles Kuffner.

2 comments

You get a lucrative contract! And you get a lucrative contract!

Gov. Greg Abbott’s border crackdown is producing a private contractor bonanza, showering tens of millions of dollars on staffing companies, technology firms and builders, including one business that sold Texas hundreds of millions of dollars worth of unreliable COVID tests.

None of the contractors are going through a formal solicitation process, potentially raising costs for a border security program that is already eating up more tax dollars than advertised.

Gothams, LLC, led by a soldier-turned-Silicon Valley entrepreneur, in January got a $43 million “emergency” purchase order to build and staff a state-run migrant detention center in Hebbronville in Jim Hogg County, just east of Laredo near the U.S.-Mexico border, records obtained by the Houston Chronicle show.

Beginning early in the coronavirus pandemic, Gothams sold Texas over $400 million worth of COVID testing services using a controversial test from Curative Inc. In January 2021, the U.S. Food and Drug Administration flagged the test for producing a “risk of false results, particularly false negative results.” The FDA stopped short of recommending the test be discontinued but six months later the agency revoked its emergency use authorization at Curative’s request.

Curative Inc. is still providing tests and testing services, including in Texas, but not with the discontinued test it developed at the outset of the pandemic, the company says.

The Gothams CEO, Matt Michelsen — who described himself as an early investor in and “operator” of Curative — defended the start-up company’s original oral fluids tests as better than invasive nasal swab tests. He said the FDA action was motivated by nothing more than “political nonsense.”

“The test was superior but we caved to the FDA,” Michelsen said in a brief phone interview with the Chronicle. “It should have been a scientific test, not a political test.”

As with the COVID deals, the border purchases are being awarded without the burden of formal bidding by the Texas Division of Emergency Management, or TDEM, which falls under the management of the Texas A&M University System.

There were no formal contracts for the hundreds of millions spent on COVID tests, and there aren’t any for the border outlays either, according to TDEM. Officials are purchasing millions of dollars at a time in goods and services, sometimes tens of millions, using simple 30-day purchase orders.

Making it all possible: Abbott’s monthly renewal of his disaster declaration along parts of the southern border, allowing him to suspend normal contracting procedures that officials say slow the response but that critics say drive up costs and promote cronyism. Same goes for the COVID-related purchases.

“He’s just abusing emergency powers at this point,” said state Rep. Mary Gonzalez, D-Clint, who represents a border district and is vice-chair of the House Appropriations Committee. “When we’re spending this amount of taxpayer dollars, it’s important for us to honor our constituents with transparency and accountability.”

TDEM acknowledged Abbott’s ongoing emergency border security orders allow the agency to “go direct to vendors without a formal solicitation or bid process,” but in answers to written questions from the Chronicle, officials said they informally reached out to eight companies for the Hebbronville facility. Only Gothams “met the full requirements of the bid,” the agency said.

The Chronicle asked to see all its border security proposals from private companies but the agency has so far declined to release them — including building plans and “professional resumes” that were submitted to the agency.

Surely the next story in this series will be about the millions of dollars these vendors have donated to Abbott’s campaign. And after that, about the criminal investigation into all the resulting graft that has been launched. Right?

Trump judge tosses longstanding law allowing in-state tuition for undocumented students

by Charles Kuffner.

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Crappy ruling from an activist judge.

A federal judge has ruled that the University of North Texas can’t charge out-of-state American students higher tuition than undocumented Texans who qualify for lower in-state tuition under a 2001 Texas law.

UNT lawyers appealed last week’s decision by U.S. District Judge Sean Jordan, a Trump appointee, over the weekend. If upheld, the decision could impact other Texas public universities, which depend financially on charging higher out-of-state student tuition.

The ruling centers on Texas’ 2001 law allowing undocumented students who have lived in Texas for three years and graduate from a Texas high school to pay in-state tuition.

This recent challenge by the Texas Public Policy Foundation, on behalf of the student organization the Young Conservatives of Texas, could provide a new path forward for some Texas lawmakers who have wanted to eliminate the in-state tuition benefit for undocumented students since at least 2015.

In 2021, a little more than 22,000 students were enrolled in Texas colleges and universities using this benefit.

Two years ago, the right-leaning TPPF filed the lawsuit, pointing out that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 states that an individual “who does not legally reside in the United States should not be eligible for a postsecondary education benefit granted on the basis of where someone lives unless United States citizens qualify for the same benefit.” Therefore, they argued, out-of-state students shouldn’t have to pay more than undocumented Texas students.

Jordan, the federal judge, agreed.

“Because Texas’s non-resident tuition scheme directly conflicts with Congress’s express prohibition on providing eligibility for postsecondary education benefits, it is preempted and therefore unconstitutional,” Jordan wrote.

Other university systems in the state said they are still reviewing this ruling.

But Thomas A. Saenz, president of the Mexican American Legal Defense and Educational Fund, criticized the judge’s ruling.

“It’s hard not to see it as a Trump judge overreaching to try to change longstanding law in the state of Texas,” said Saenz, who is also MALDEF’s general counsel. He found the ruling surprising given the amount of time the state law has been in place.

“It’s obviously a political lawsuit, and granting that political lawsuit is what’s disturbing,” he said.

[…]

Michael Olivas, a professor emeritus at the University of Houston Law Center who helped write the 2001 law, slammed the judge’s decision.

He said the judge did not take into account the other exceptions that allow out-of-state students to receive the lower, in-state tuition rate, including the waiver that allows students in bordering states to receive in-state tuition at some institutions.

“These students are trying to make a political point for an issue that was a non-issue and then obfuscated it,” he said.

Olivas also said TPPF lawyers did not adequately demonstrate how out-of-state students are harmed by the law, given that any U.S. citizen can qualify for in-state tuition if after living in Texas for a year before enrolling in college, while an undocumented student must live in Texas for three years before qualifying for in-state tuition.

Olivas expects advocacy and legal immigration groups to get involved in the appeal of the UNT ruling.

This is the law in question, which was signed by Rick Perry. Note how it says it was “effective immediately”. That happens when a bill is passed in both chambers with (I believe) a two-thirds or more majority; otherwise, newly enacted laws have to wait 90 days before taking effect. Nothing has changed about this law, or I presume about that 1996 federal law that supposedly invalidates it. The only thing that has changed is the Republican Party, which used to support things like this as a matter of routine. Combine a bunch of political opportunists with deep pockets and a Trump judge, and this is what you get.

It’s a bad ruling based on faulty logic, and it does something for Republican legislators that they would like to do but maybe don’t want to have to own. I have no idea what the fate of this will be down the line – for all the obvious reasons, I have no faith in either the Fifth Circuit or SCOTUS, but I’m willing to be pleasantly surprised. I’ll keep an eye on it.

UPDATE: Here’s a statement about the ruling from Intercultural Development Research Association.

Now is the autumn of our discontent

by Charles Kuffner.

Comments are off for this post

Nobody likes anything right now.

Texas voters have a net disapproval for how state leaders have handled the reliability of the electricity grid, abortion and property taxes, according to a new University of Texas/Texas Tribune poll.

In an October poll of 1,200 registered voters, respondents expressed major disapproval for the state’s handling of the reliability of the main power grid after statewide power outages in February left millions of Texans without power for days. Only 18% of voters approved of how state leaders handled the issue, and 60% of voters disapproved. Even lawmakers themselves have expressed frustration that the laws they wrote to prepare the power grid for extreme weather haven’t led to enough preparations ahead of this winter.

“The lurking uncertainty and doubts about the electricity grid [are] a mine waiting to go off,” said Jim Henson, co-director of the poll and head of the Texas Politics Project at the University of Texas at Austin. “If there’s another even moderate infrastructure problem in the state in the grid or service delivery writ large that can be connected with the February outages and the failure of the Legislature to respond in a way that people expect it to be effective, it’s a real political problem for incumbents.”

[…]

According to the poll, 39% of voters approved of how state leaders have handled abortion policy while 46% disapproved. Lawmakers this year passed the most restrictive abortion law in the nation, barring the procedure before many people know they are pregnant.

Only 20% of voters said they approved of the Legislature’s handling of property taxes, while 46% said they disapproved. The Legislature has tried for years to cut increasing property taxes for homeowners across the state, but voters see only minor reductions in their bills.

Voter disapproval for the state’s handling of the issue increased from June, when pollsters at the University of Texas last asked about the issue after the Legislature’s regularly scheduled five-month special session.

[…]

A plurality of 47% of voters opposed banning abortions after about six weeks, as the state’s new law does, and 45% approve. Fifty-seven percent of voters oppose the law’s provision allowing private citizens to sue people they believe helped someone obtain an abortion, including 35% of Republicans. Only 30% of voters said they approved of that portion of the law. If the plaintiff wins such a lawsuit, the law allows that person to be awarded at least $10,000, as well as costs and attorney fees.

“The idea of bounties and the problems with having private enforcement of public laws of what are seen currently as constitutional rights strikes at least more people as problematic than the actual law itself,” Blank said.

Overall, the polls showed an uptick in approval of how the state has handled abortion policy since the last time voters were polled on the subject in June. Then, 32% of voters approved and 42% disapproved. Blank said that was marked by an increase in approval from Republicans as more voters learned of the state’s new abortion law, which was passed in May.

Polls remained consistent on exceptions to abortion restrictions. More than 80% of voters said abortions should be allowed if a woman’s health was at risk, and nearly three quarters said they should be allowed in cases of rape or incest. Nearly 60% said they should be allowed if there was a strong chance of a serious defect to the baby, but support for other exceptions dropped substantially from there.

This is from the same poll we discussed last week. For the most part there are clear partisan splits, which makes these results less interesting to me overall, but as you can see there are some places where the consensus is greater. That should present an opportunity for Democrats in their messaging, which always sounds easier to do than to actually do it. Independents are particularly negative about everything, including Greg Abbott’s favorite anti-immigration toys, which may just be because these things come with partisan squabbles that independents always react negatively to, or maybe just because they’re grumpy about the state of the world, or maybe they really do represent some electoral danger for Republicans. I do agree that another weather-induced blackout would be bad news for the ruling party. I wouldn’t draw any broader conclusions than that.

Abbott’s migrant roundup order still blocked

by Charles Kuffner.

3 comments

A federal judge in El Paso on Friday extended her order blocking Gov. Greg Abbott’s directive to state troopers to pull over drivers transporting migrants “who pose a risk of carrying COVID-19.”

U.S. District Judge Kathleen Cardone lengthened her restraining order by another two weeks after a hearing Friday, according to a court filing. Her original order on Aug. 3 was set to expire Friday.

In July, Abbott ordered state troopers to pull over civilian drivers giving rides to recent immigrants who may be infected with the virus and redirect the drivers to their origin point. If the driver didn’t comply, the troopers should seize their vehicles, the order said.

Soon after, the U.S. Department of Justice sued Texas and Abbott, describing the governor’s executive order as “dangerous and unlawful.”

In the lawsuit, the DOJ said Abbott’s order would disrupt federal immigration officials’ network of contractors and nongovernmental organizations that help host recently arrived migrants while their legal cases are pending.

See here and here for background on the suit filed by the Justice Department. There’s also now another lawsuit filed by the ACLU on behalf of several groups; as far as I know there has not yet been a hearing for that. In keeping with my earlier posts, I don’t know how this is likely to play out, but as a rule any time Greg Abbott and Ken Paxton lose in court, it’s probably a good thing.

Another lawsuit filed against Abbott’s migrant transport order

by Charles Kuffner.

1 comment

Immigrant rights groups backed by the American Civil Liberties Union filed a federal lawsuit against Texas Governor Greg Abbott over his executive order restricting the transportation of migrants, claiming it goes against federal law and amounts to racial profiling at the southern border.

The legal challenge was brought by the nonprofit Annunciation House, a migrant shelter provider in El Paso, along with immigrant advocacy groups Angry Tias & Abuelas of the Rio Grande Valley and FIEL Houston,. They are represented by attorneys with the ACLU’s Immigrants’ Rights Project and the ACLU of Texas.

This lawsuit, filed late Wednesday in El Paso federal court, comes six days after the U.S. Department of Justice sued Abbott to block the order. On Tuesday, a federal judge in that case issued a temporary restraining order blocking enforcement of the order until a hearing on an injunction can be held.

Echoing the DOJ’s claims, the ACLU and immigration groups allege that the order violates the supremacy clause of the U.S. Constitution by attempting to regulate the movement of migrants, which is for the federal government to decide. They also say the order unlawfully attempts to regulate the federal government.

[…]

In Wednesday’s lawsuit, the ACLU argues the order will directly impact people who have been released from the federal government’s custody into the country to await their immigration hearing. Those people will be unable to get any form of transportation after being released from CBP custody, according to the complaint, which points out that state law enforcement officials would be taking migrants back to CBP after the agency released them.

The groups also claim the order allows Texas police to racially profile travelers along the border region.

“It directs state officers to make their own determinations about passengers’ immigration status, wholly independent of the federal government, and to impose harsh penalties based on those unilateral immigration decisions,” the lawsuit states. “It opens the door to profiling, standardless detention, questioning, vehicle seizure, rerouting, and heavy fines. The executive order is already having a profound chilling effect on people’s movement in border communities and throughout the state.”

In addition, the immigrant advocacy organizations say they will be directly affected by the order if it is allowed to be enforced. Annunciation House transports migrants who have been released from federal immigration custody to its facility, which houses migrants in the El Paso area. Angry Tias funds numerous services for migrants, including a taxi service that is kept on retainer. Both groups say they would be unable to provide such services under the governor’s order, would face having their vehicles impounded and would be left with no way of assisting migrants.

See here and here for background on the suit filed by the Justice Department. As before, I don’t really know enough to say much of value – I’m not fully clear on the differences in the claims made by the two groups of plaintiffs. It may be that this suit winds up getting combined with the other one, as often happens. Whatever the case, I’m rooting for the plaintiffs. The Texas Signal and Daily Kos have more.

Judge halts Abbott’s “pull over migrants” executive order

by Charles Kuffner.

Comments are off for this post

For now, anyway.

A federal judge on Tuesday blocked Gov. Greg Abbott and the state of Texas from ordering state troopers to pull over drivers transporting migrants “who pose a risk of carrying COVID-19.”

U.S. District Judge Kathleen Cardone granted a temporary restraining order against Abbott’s move, meaning it will be blocked while the case continues to unfold. The U.S. Justice Department sued Abbott and Texas on Friday, a day after U.S. Attorney General Merrick Garland threatened to take legal action if Abbott didn’t rescind his order, calling it “dangerous and unlawful.”

In a statement later Tuesday, Abbott’s press secretary said the state looks forward to presenting evidence that supports his order.

“The Court’s recent order is temporary and based on limited evidence,” Press Secretary Renae Eze said in the statement.

Cardone still must decide whether Texas’ move is constitutional, and her temporary restraining order is set to last until the court’s next hearing on Aug. 13. Abbott has defended his order as necessary to help prevent the spread of COVID-19 in Texas, while advocates for migrants say it would disrupt federal immigration efforts and invite troopers to racially profile people.

See here for the background, and here for a copy of the restraining order. This is all pretty technical and I don’t have the knowledge to say anything cogent, so I will give you a bunch of links at the end of the story for more reading, and we’ll go from there. This tweet made me think about what may come next:

.
The lawyers can correct me, but 212(f) authority is pretty damn broad compared to what states can do within the legal framework of the immigration system, especially in the wake of Arizona v. United States. So Abbott can try to evade these decisions without the same wiggle room.

— Cris Ramón (@CramonMigration) 6:05 PM – 3 August 2021

It certainly won’t surprise me if Abbott takes another crack at this if he loses. He has every incentive to push at this until he can claim a victory of some kind. Buzzfeed, the Chron, Daily Kos, and TPM have more.

Justice Department sues over Abbott’s anti-migrant executive order

by Charles Kuffner.

8 comments

The Biden administration sued Texas on Friday, asking a federal judge to block Gov. Greg Abbott’s order that state troopers pull over drivers transporting migrants who pose a risk of carrying COVID-19 as a way to prevent the spread of the virus.

The lawsuit comes a day after the U.S. Attorney General Merrick Garland, in a letter to the governor, threatened to take legal action against Texas if Abbott didn’t rescind his order. Garland described the order as “dangerous and unlawful.”

The Department of Justice said in the lawsuit that Abbott’s order will contribute to the spread of COVID-19 and it will disrupt immigration officials’ network of contractors and non government organizations that help host recently arrived migrants as their legal cases are pending.

“In our constitutional system, a State has no right to regulate the federal government’s operations,” the DOJ argued in a motion asking the judge to block Abbott’s order, adding “this restriction on the transportation of noncitizens would severely disrupt federal immigration operations.”

[…]

The lawsuit says that if migrants are not allowed to be transported by volunteers or contractors they would have to be confined to immigration facilities where there would not be enough space for every migrant.

I’d not blogged about this before, so here’s the background for you:

Gov. Greg Abbott draws criticism for ordering state troopers to pull over vehicles with migrants, saying it will stem COVID-19 risk
U.S. attorney general blasts Texas Gov. Greg Abbott’s latest border directive and threatens a legal battle
‘Dangerous and unlawful.’ AG Merrick Garland threatens to sue over Gov. Abbott’s latest border order

Yes, the same Governor who has banned mask mandates and vaccine mandates for local government employees somehow thinks this will have a positive effect on COVID, even though 90% of migrants are vaccinated, nearly double the rate of the Texas population as a whole. For more on the lawsuit, which is an emergency motion seeking an injunction or temporary restraining order, see here. For a copy of the lawsuit itself, see here. For an analysis of why the Abbott executive order is “*flagrantly* illegal and unconstitutional”, see here. For more in general, see Dos Centavos and the Chron.

The DACA ruling

by Charles Kuffner.

1 comment

Best mugshot ever

A federal judge in Texas ruled Friday that Deferred Action for Childhood Arrivals, a program that allows certain immigrants to temporarily avoid deportation and receive renewable work permits, is illegal and ordered the Biden administration to stop granting new applications.

Judge Andrew Hanen’s order won’t affect current DACA recipients who have the two-year renewable work permits.

“[T]hese rulings do not resolve the issue of the hundreds of thousands of DACA recipients and others who have relied upon this program for almost a decade,” Hanen’s order says. “That reliance has not diminished and may, in fact, have increased over time.”

The ruling stems from a 2018 lawsuit filed by Texas Attorney General Ken Paxton and eight other states against the federal argument. The complaint argues that Texas and the other states face irreparable harm because they bear extra costs from providing health care, education and law enforcement protection to DACA recipients.

Across the country there are more than 600,000 DACA recipients, including 101,970 in Texas, which has the second most DACA recipients in the country after California, according to U.S. Citizenship and Immigration Services.

In 2012, the Obama administration created the program to allow immigrants who were brought to the country illegally to be able to temporarily avoid deportation, work legally and pay taxes.

Hanen said the Obama administration did not use the right legal procedure to create the program, making it illegal.

The program has survived previous court rulings. But the Trump administration had put an end to the program before a U.S. Supreme Court ruling a year ago allowed the federal government to continue it.

The latest ruling will prevent the approval of at least 50,000 new DACA applicants nationwide who applied earlier this year but were not approved before Friday’s ruling, based on USCIS statistics.

There’s a lot of backstory to this, as the original threat of litigation came in 2017. See here, here, here, here, here, here, and here for previous blogging.

What we know at this point: The ruling will be appealed, and I think there’s a decent chance that it is put on hold pending appeals. It will still have a negative effect on a lot of people, many of whom have been in a state of limbo already for a decade or more. There’s a good argument that Judge Hanen’s ruling is erroneous, and thus could be overturned. But really, this is now a super duper way-past-due emergency for the Democrats to fix legislatively while they can. The filibuster is the reason the DREAM Act of 2010 (which had I believe 55 votes in favor) didn’t pass – it’s a bit misleading even to say it had “55 votes in favor”, because that was 55 votes to suspend debate and allow for a vote; it never actually got an up-or-down vote on the Senate floor – and we cannot let it be the reason it fails again. There’s talk of including a new DREAM Act in the infrastructure bill that will be passed by reconciliation. It’s ludicrous that we have to resort to such legerdemain to pass a bill that has majority support, but ultimately I don’t care as long as the damn thing passes.

And finally, another thing we have known for a long time is that Ken Paxton has gotta go. Electing Justin Nelson in 2018 would not have stopped this lawsuit – it had already been heard by Election Day that year, and as noted there were eight other states as plaintiffs – but that’s beside the point. Dumping Ken Paxton’s felonious ass will go a long way towards preventing other bad things from happening. In the short term, though: The DREAM Act has got to pass. No excuses, no other way out. Stace has more.

We do agree that “Greg Abbott” and “disaster” go together well

by Charles Kuffner.

1 comment

I just have one question about this.

Over the past year, Gov. Greg Abbott has issued disaster declarations across the state for a number of tragedies: the coronavirus pandemic that killed more than 50,000 Texans, a winter storm that left millions of people in freezing temperatures without power for days, hurricanes and floods that wiped out homes and local infrastructure.

The disaster declarations give the governor broad power to suspend state laws and regulations that hinder a jurisdiction’s recovery from a disaster and to allow the use of available resources to respond to the disaster.

Then, on May 31 the two-term Republican governor who is seeking reelection next year took the unprecedented step of declaring a disaster for 34 counties based on an increase of illegal immigration at the Texas-Mexico border. The declaration allowed Abbott to request the reallocation of $250 million of legislatively appropriated funds toward a border wall construction project pushed by his office.

“It’s extraordinarily unusual,” said Jon Taylor, professor of political science at the University of Texas at San Antonio. “Traditionally, it’s used for natural disasters,” he added, though state law does allow for its use for some man-made disasters.

Abbott’s move raises questions about the executive branch’s emergency powers, rekindling concerns raised during the early days of COVID-19 last year when Abbott used his broad emergency powers to enact restrictions shutting down businesses to curb the pandemic. In response, the Legislature tried without success to rein in Abbott’s authority this session.

But now, critics are questioning whether an increase in illegal immigration constitutes a disaster that merits emergency action by the governor.

State Rep. John Turner, D-Dallas, said Abbott’s use of a disaster declaration to reallocate legislatively appropriated funds to a project from his office stretches the concept of emergency authority “to its breaking point.”

“A governor should not be able to circumvent the legislative process by declaring such matters to be emergencies and then implementing whatever measures he wishes,” Turner said in a statement. “If a governor can commence such a long-term, multi-hundred-million-dollar public works project under the cover of emergency powers, it is difficult to know what the limits of those powers are.”

“I hope the Legislature will reassert its authority and resist this ill-considered action by the Governor,” he added.

See here and here for the background. My question is this: Who’s going to sue, and when will they do it? The Lege is not going to rein in Abbott – he’s not going to put that on the special session agenda, and even if he did the same Republicans who grumbled about his COVID actions are just fine with this. Filing a lawsuit is all that’s left. Maybe it works, maybe it doesn’t – my advice is to hire a better attorney than Jared Woodfill if you want a chance – but that’s the only avenue available at this point. It’s fine by me if there are multiple lawsuits, in both state and federal court. Just, start filing. The longer this charade goes on, the worse it’s going to get.

Abbott’s border wall

by Charles Kuffner.

9 comments

I have many questions about this, but for this post I will limit myself to three.

Gov. Greg Abbott announced Thursday that Texas will build a border wall along the state’s boundary with Mexico — but provided no details on where or when.

Abbott declared his plans during a press conference in Del Rio. He said he would discuss the plans next week. The Biden administration issued a proclamation that stopped border wall construction on his first day of office.

Abbott announced the news while discussing a slew of border initiatives, such as a $1 billion allocation for border security in the state budget lawmakers just passed and a plan to establish a Governor’s Task Force on Border and Homeland Security with public safety and state government officials.

“It will help all of us to work on ways to stem the flow of unlawful immigration and to stem the flow of illegal contraband,” Abbott said, while seated next to officials from the National Guard, Texas Department of Public Safety and Texas Division of Emergency Management.

At the conference, Abbott also announced plans to increase arrests along the border — and increase space inside local jails.

“They don’t want to come to across the state of Texas anymore because it’s not what they were expecting,” Abbott said before being met with applause from those at the conference. “It’s not the red carpet that the federal administration rolled out to them.”

He also announced an interstate compact with Arizona Gov. Doug Ducey to resolve the border “crisis,” and called on other states to do the same.

1. How exactly is any of this going to be paid for? I know Abbott has promised more details next week, but we just had an entire legislative session, with a budget being passed, and I don’t remember “building a border wall” being part of it. Also, arresting however many people and putting them in jail – who will be paying for that? Even if one can claim that there is a line item in the budget for this, does anyone believe it’s enough?

2. How many lawsuits do you think this will generate? There’s federal-state issues, such as whether states can arrest migrants for trespassing, likely questions about how various funds may be spent on this ill-conceived idea, and who knows what else. Some number of lawyers are going to make a lot of bank on this.

3. We’re totally going to start seeing “Abbott for President 2024” speculation because of this, aren’t we? Time to find a nice Internet-free cabin in the woods, I suppose. More from the Trib here.

How about we sue you for a change?

by Charles Kuffner.

8 comments

The state of Texas has sued the federal government more times than I can count in recent years. There may be examples of the reverse happening, but offhand I can’t think of any. As such, this may be a first.

The Biden administration is threatening to sue Texas over its plans to stop state-licensed facilities that are contracted with the federal government from housing migrant children, with a federal attorney calling the state’s move a “direct attack” on federal refugee resettlement efforts.

The federal response comes after Gov. Greg Abbott ordered last week that Texas child care regulators revoke the licenses of state-licensed facilities that house migrant children. The move, the latest by the Republican governor as he spars with President Joe Biden over immigration policies, would force the facilities to stop serving unaccompanied minors or lose their license to serve any children.

Texas officials have already begun instructing the 52 state-licensed facilities serving migrant children to wind down operations by Aug. 30, following Abbott’s order, according to a notice sent to shelters by the Texas Health and Human Services Commission.

In a letter sent Monday to Abbott and other Texas officials, Paul Rodriguez, a top attorney for the federal Department of Health and Human Services, said Texas’ move violates the U.S. Constitution’s Supremacy Clause, which says federal law supersedes state laws. He asked the recipients to clarify whether they intended that the order be applied to those shelters, which are overseen by HHS and its refugee resettlement branch, the Office of Refugee Resettlement.

He wrote that the federally contracted shelters “comprise a significant portion of ORR’s total operational footprint, and represent an indispensable component of the Federal immigration system.”

If Abbott’s May 31 order includes those ORR facilities, it “would be a direct attack on this system,” Rodriguez said in the letter. He gave the state until Friday to clarify whether the order will affect those facilities.

If so, he said legal action could follow.

[…]

The governor’s office did not respond to questions about the potential relocation of children who are housed in the state-licensed shelters or whether the state was considering backing down on its order in light of the HHS letter.

Abbott pointed to the state’s foster care capacity woes as one of the reasons for his order. Hundreds of foster children have spent nights in hotels, community organizations or Child Protective Services offices because there weren’t enough suitable placements as dozens of foster care providers relinquished their contracts with the state due largely to higher scrutiny on the system.

“The unabated influx of individuals resulting from federal government policies threatens to negatively impact state-licensed residential facilities, including those that serve Texas children in foster care,” Abbott wrote in the order.

Only 134 migrant children were housed in federally contracted Texas facilities that also serve foster children as of May 10, according to the data gathered by the Associated Press.

Patrick Crimmins, a Texas Department of Family and Protective Services spokesperson, said unaccompanied immigrant children don’t enter the state’s foster care system directly. They would only be in the system if they had to be removed from family members with whom federal employees placed them.

“There are no children in foster care simply because they are an unaccompanied minor. Children are only in foster care because of abuse or neglect that is reported to us and investigated by us,” Crimmins said.

Asked how Abbott’s order might affect the foster system’s placement shortages, Crimmins replied, “We don’t know that yet.”

Abbott’s claim is that the feds have foisted an unfunded mandate on Texas, which strikes me as a perennial complaint that is made whenever it’s convenient. It’s also a little rich given the recent “certain cities can never spend less money on the police” legislation. This is a political squabble more than anything, though with the higher stakes of having a direct effect on some number of children. Putting those very real effects aside for a moment, the political fight will turn on the question of who gets blamed for any harm that results to these children. (Yes, I know exactly how awful that sounds.) We have one possible data point from this Chron story:

Texans back President Joe Biden’s approach to immigration over Gov. Greg Abbott’s by nearly 10 percentage points, according to a new poll released as the clash between the governor and Biden administration over border policy continues to escalate.

The poll, conducted at the end of May, found 44 percent of Texans approve of Biden’s handling of immigration compared to 35 percent who approve of Abbott’s. The online poll of 506 Texas residents was conducted by Spectrum News and Ipsos and had a margin of error of plus or minus 5.2 percentage points.

The poll link appears to be broken. I’d be dubious of it even if I could inspect it, as Biden has generally polled worse on immigration and the border than he has overall. It’s also one poll result, with all the usual caveats. That said, if this comes down to video images of possibly crying children being relocated, even if it’s just from one shelter to another, “Abbott gave the order to close the shelters” will outweigh “Abbott blames Biden for not giving the state enough money for the children in the shelters”. I could be wrong about that, of course, and if it turns into litigation I suspect a judge would step in and halt any closures for the time being, until the legal questions can get sorted out. I suspect Abbott knows that part as well, so again this comes back to being a partisan fight. Abbott doesn’t generally back down from those when he’s opposite the feds. Expect this to take awhile to come to a resolution. Daily Kos has more.

Sheriff Gonzalez nominated to lead ICE

by Charles Kuffner.

3 comments

Sheriff Ed Gonzalez

President Joe Biden announced Tuesday that he will nominate Harris County Sheriff Ed Gonzalez, a vocal skeptic of cooperating with federal immigration authorities in certain circumstances, to serve as director of U.S. Immigration and Customs Enforcement.

As head of ICE, Gonzalez would help oversee one of the most contentious parts of Biden’s agenda: enforcing U.S. immigration law. Biden has promised to unwind much of predecessor Donald Trump’s hardline border policies.

Gonzalez is a former Houston police officer who served on the City Council before first getting elected sheriff in 2016. He won a second four-year term in 2020. During his first term, he was a vocal critic of Trump’s approach to immigration.

In 2019, when Trump tweeted that his administration would be deporting “millions of illegal aliens,” Gonzalez posted on Facebook that the “vast majority” of undocumented immigrants do not proposed a threat to the U.S. and should not be deported.

“The focus should always be on clear & immediate safety threats,” he said.

And soon after taking office, Gonzalez ended a Harris County partnership with ICE that trained 10 deputies to specifically screen jailed individuals for immigration status and hold any selected for deportation. According to the Houston Chronicle, cutting the program still meant Harris County would hold inmates for deportation regardless of their charge, but only if ICE officials themselves made the request. According to a 2020 report by Houston Immigration Legal Services Collaborative, ICE responded to the program’s cancelation by stationing nine ICE officers in the jail, who continued to screen and detain Harris County residents.

The program ended in late February of 2017, but between Jan. 20 and May 4 of that year, the number of people transferred into ICE custody from Harris County was 60% higher than it was for the same period in 2016. TRAC, a federal agency research center run by Syracuse University, found that Harris County received the most ICE immigration holds in both fiscal year 2018 and 2019, but it’s unclear how many resulted in deportations. The HILSC report estimated that ICE physically deported 6,612 Harris County residents in 2018.

Syracuse University found that Harris County had the third most immigrants transferred to ICE from local law enforcement in fiscal year 2018, in large part due to fingerprint records shared under the Secure Communities program. Harris County is the third most populous county in the United States.

Gonzalez also vocally opposed 2017 legislation that would prevent cities from banning local law enforcement from asking about immigration status and would push civil fines and a misdemeanor offense on law enforcement who don’t comply with federal immigration enforcement.

In a letter to the Senate Committee on State Affairs, Gonzales opposed what supporters dubbed “anti-sanctuary city” legislation, saying it would take public safety resources away from addressing other local safety issues, such as human trafficking and murder.

“I am also concerned about the risk of an unintended consequence: creating a climate of fear and suspicion that could damage our efforts to reinforce trust between law enforcement and the communities we serve,” he wrote.

Let’s just say that ICE is an institution in need of some big, big reforms. I have a ton of faith in Sheriff Gonzalez, and I believe he is up to the challenge. He’s going to have his work cut out for him.

More from the Chron.

Lina Hidalgo, Harris County Judge, lauded the nomination and called Gonzalez her friend.

“I’ll be sad for him to leave us, but President Biden will gain a compassionate, thoughtful and courageous leader,” Hidalgo said in a tweet. 

Under state law, Harris County Commissioners Court, which Hidalgo leads, is tasked with appointing Gonzalez’s replacement, who would then serve until the winning candidate from the November 2022 election is sworn in.

Gonzalez took office after defeating Republican Ron Hickman, his predecessor and a Commissioners Court appointee, in 2015 after former sheriff Adrian Garcia resigned to run unsuccessfully for Houston mayor.

Garcia, now a Commissioners Court member, would be among the county leaders to pick Gonzalez’s replacement.

“He brings with him such a wealth of experience — the wealth of experience coming from the fact that he is a long-time law enforcement leader,” Garcia said.

Past immigration enforcement leaders, Garcia said, have not brought that experience to the table.

Garcia pointed to Gonzalez’s decision to end a contested ICE partnership — known as 287G — in which some Harris County sheriff’s deputies were trained to perform the functions of federal immigration officers. Under the program, deputies were trained to determine the immigration status of jailed suspects and hold those selected for deportation.

Gonzalez said the sheriff’s office saved at least $675,000 by redeploying deputies to other law enforcement duties.

“I supported him in abolishing that policy,” Garcia said.

[…]

Immigrant advocates expressed guarded optimism to the Biden administration’s ICE choice, with FIEL Houston officials calling him a listener.

“We can attest to is the fact that he has been and continues to be a man who listens to and takes input from the community,” Cesar Espinosa, FIEL executive director, said in a statement. “We understand that the role he is about to undertake is a huge and controversial role and we wish him well in this endeavor.”

Regardless of who leads the law enforcement agency, Espinosa said he would like for ICE leadership to end immigration raids, the use of the 287G program elsewhere and stop forcing ankle monitors on those “who do not pose a flight risk.”

Ali Noorani, president of the National Immigration Forum, called Gonzalez a humane choice for ICE leadership.

“His proven track record of pushing for smarter immigration enforcement, as well as advocating for Dreamers in his community, is an encouraging sign that he would run ICE with both practicality and compassion,” she said.

César Cuauhtémoc García Hernández, a law professor at the University of Denver focused on immigration, noted Gonzalez’s “complicated history” with ICE, given his decision to end the controversial 287(g) agreement with the agency.

“It will be interesting to see how much that decision is reflected in his work as head of ICE assuming he confirmed by the senate,” he said.

He also noted that while Gonzalez, if confirmed, would take over a significantly larger agency, but would be accepting a role where he would no longer be the top decision maker or policy setter — and instead accept direction from the Biden White House or Department of Homeland Security Secretary Alejandro Mayorkas.

True, but Sheriff Gonzalez was also a City Council member, so he has experience in not being the top person in the organization. He’ll do fine, as long as he has the resources and the mandate to do what needs to be done.

As for the local political implications, we may get a current Constable elevated to the Sheriff’s job, or we may get one of Gonzalez’s top assistants. I’m sure we’ll start hearing some names soon, and I expect Commissioners Court to fill the spot within a month or so of his departure. Which will not be until after he’s confirmed, so we’ll see how long that takes. Whatever the case, all the best wishes to Sheriff Gonzalez. We’ll miss you, but the country as a whole will be better off.

(The same press release also announced that former CD23 candidate Gina Ortiz Jones was nominated to be under secretary of the Air Force. She is highly qualified for that job, and I wish her all the best as well.)

Deportation freeze still on hold

by Charles Kuffner.

13 comments

Best mugshot ever

A federal judge in Texas has put an indefinite halt to President Joe Biden’s 100-day ban on deportations after issuing a preliminary injunction late Tuesday.

The ruling by Judge Drew Tipton comes after he had already temporarily paused the moratorium twice. The ban is nationwide and is in place as the case continues to play out in courts.

The ruling is a victory for Texas Attorney General Ken Paxton, who sued to block Biden’s order three days into the Biden administration. Paxton’s office argued the state would face financial harm if undocumented immigrants were released into the state because of costs associated with health care and education, and said the moratorium would also lure others to come to Texas.

Tipton, a Trump appointee to the federal bench, wrote in his order that Texas would also incur costs for detaining immigrants within its state. “Texas claimed injury from unanticipated detention costs is sufficiently concrete and imminent. The harm is concrete or de facto because Texas incurs real financial costs in detaining criminal aliens,” he wrote.

It’s unclear whether the Biden administration will appeal the ruling to the 5th Circuit Court of Appeals, which has jurisdiction over Texas’ federal benches.

See here, here, and here for the background. This continues to be a load of crap, though as noted before one that seems to have a fairly limited impact. I don’t know what the argument is for not appealing. You can find a copy of the order here.

Deportation pause still on hold

by Charles Kuffner.

Comments are off for this post

Another pause for the pause, which is as dumb and annoying as it sounds.

Best mugshot ever

A federal judge in Texas has extended the block on President Joe Biden’s deportation moratorium for two more weeks as the case continues to play out in court.

Judge Drew Tipton said in an order dated Monday the extension was necessary for “the record to be more fully developed” in the case brought by Texas Attorney General Ken Paxton, who challenged Biden’s 100-day pause on deportations.

Tipton originally issued a 14-day suspension of Biden’s moratorium on Jan. 26. The pause in deportations was part of Biden’s attempted day one overhaul of several of former President Donald Trump’s immigration policies. But Paxton quickly filed a lawsuit in response to Biden’s moratorium, claiming the state would face financial harm if undocumented immigrants were released from custody, because of costs associated with health care and education.

In his order, Tipton, a Trump appointee who took the bench last year, said Texas would face more harm than the federal government if the extension was not granted.

See here and here for the background. Not clear to me why this is taking so long, or even if this counts as “so long” at this point. I started to write that I wasn’t sure why there hasn’t been an appeal yet, but this tweet by Aaron Reichlin-Melnick answered that question, and suggested now one may be forthcoming . Beyond that, all I know is we’re still waiting.

Federal judge blocks the deportation pause

by Charles Kuffner.

15 comments

Infuriating, but possibly less than it appears.

Best mugshot ever

A federal judge in Texas temporarily blocked the Biden administration from moving forward with a 100-day pause on many deportations across the US, saying Tuesday that it was not adequately reasoned or explained to the public.

The temporary restraining order represents an initial setback for the Biden administration, which has vowed to reform agencies like Immigration and Customs Enforcement (ICE) by restricting who is arrested and deported.

“This is a frustrating loss for an administration that was trying to set a different tone than the chaos and rapid changes of the prior four years,” said Sarah Pierce, an analyst at the Migration Policy Institute. “The order makes it clear that the moratorium may face significant legal hurdles.”

Judge Drew Tipton, who was appointed by former president Donald Trump, ordered the Biden administration to immediately stop enforcing its moratorium on many deportations, which had gone into effect on Friday before Texas sued. The temporary restraining order is in effect for 14 days as the case proceeds.

On Jan. 20, the Biden administration issued a pause on deportations for many undocumented immigrants who have final orders of removal. The memo states that the 100-day pause applies to all noncitizens with final deportation orders except those who have engaged in a suspected act of terrorism, people not in the US before Nov. 1, 2020, or those who have voluntarily agreed to waive any right to remain in the US.

But Tipton said the memo issued by David Pekoske, acting secretary of the Department of Homeland Security, appeared likely to violate the Administrative Procedures Act and that it was not adequately reasoned or explained.

“Here, the January 20 Memorandum not only fails to consider potential policies more limited in scope and time, but it also fails to provide any concrete, reasonable justification for a 100-day pause on deportations,” he wrote, while adding that Texas had shown evidence it would suffer if Biden’s moratorium was not blocked.

Tipton said Texas had demonstrated “that it pays millions of dollars annually to provide social services and uncompensated healthcare expenses and other state-provided benefits to illegal aliens such as the Emergency Medicaid program, the Family Violence Program, and the Texas Children’s Health Insurance Program.”

The state claimed that those costs would rise if the moratorium continued.

But Pratheepan Gulasekaram, an immigration law professor at Santa Clara University Law School, said the decision appeared to be vulnerable to an appeal.

“Federal administrations can and should be able to set their own enforcement policy as long as it is not forbidden by federal law. This allows a state to stop the federal government from reassigning resources and personnel and deciding the optimal level of enforcement,” he said. “This is not the way our federalism in the constitution is structured. States don’t have veto ability.”

See here for the background. Slate’s Mark Joseph Stern, who notes that Judge Tipton admitted his own ignorance of immigration law in the ruling, goes into some detail.

There are several remarkable aspects of Tipton’s decision. First, it applies nationwide—even though conservative jurists and Republican politicians spent the last four years decrying nationwide injunctions as illicit and unlawful. Trump’s Department of Justice launched a campaign against these injunctions, complaining that they unconstitutionally interfered with executive power. Right-wing judges condemned them as lawless power-grabs that promote “gamesmanship and chaos.” Republican lawmakers proposed legislation bringing them to a heel. Intellectuals in the conservative legal movement accused “resistance judges” of using them to sabotage the president. Now, six days into Biden’s term, a conservative judge has issued a nationwide injunction at the behest of a Republican politician.

Second, it is extremely difficult to determine the harm that Biden’s memo inflicted on Texas—and, by extension, why the state has standing to bring this case at all. In his lawsuit, Paxton failed to identify any concrete harm to Texas that actually flows from the deportation pause. Instead, he rehashed general complaints about the state’s expenditures on immigrants eligible for deportation—using estimations from 2018—and asked the court to assume that Biden’s memo would raise these costs. Paxton offered zero evidence that this specific memo would raise costs to Texas. Tipton gave the state standing anyway.

Third, and most importantly, Tipton’s decision is utterly divorced from both the entire framework of federal law governing deportation and the removal system as it functions on the ground. The thrust of Tipton’s reasoning is that a federal statute says the government “shall remove” an immigrant who has been “ordered removed” within 90 days. But, as the Supreme Court recognized as recently as last June, federal law also gives DHS sweeping discretion to determine which immigrants to deport, and when. A slew of statutes and regulations recognize this authority and address immigrants who are not removed within 90 days, a clear signal that this deadline is not, in fact, an iron rule.

Moreover, the deportation process is complex and time-consuming: It involves not only legal appeals but also tedious pragmatic considerations, like how an immigrant will actually be transported out of the country. The government has to plan this transportation on a mass scale, and it does not have a travel agency at its disposal that can guarantee an international flight full of deported immigrants within 90 days or your money back.

In short, if immigration law meant what Tipton says it does, then every president has violated it every day of their term, including the one who appointed him. Luckily, it does not. And there is therefore a very good reason to doubt that Tipton’s order will cause many, if any, deportations. The judge blocked Biden’s general policy of non-enforcement—but he did not, and could not, force the government to actually ensure that every immigrant who is eligible for removal be deported within 90 days. Biden’s DHS can merely exercise its authority to pause deportations on an immigrant-by-immigrant basis by granting an administrative stay of removal. It can halt travel arrangements and cancel deportation flights. Biden’s memo might be on hold, but it is perfectly lawful for the government to freeze deportations under its existing discretionary powers.

Others noted that the order is pretty limited in scope:

.
And as @DLind points out, that also leaves in place the portions of the memorandum that revoked a number of bad Trump-era policies.

— Aaron Reichlin-Melnick (@ReichlinMelnick) 2:00 PM – 26 January 2021

Everyone’s favorite question of standing was also brought up. It was not clear as I was drafting this if the Biden administration was going to ask the judge to put his order on hold, or if they were just going to appeal directly; either way, things may change before this runs in the morning, or shortly thereafter. It’s important to remember that the point of this lawsuit first and foremost is Ken Paxton’s fundraising, which works to his advantage whether he wins or loses. Given that, he may as well lose, that’s all I’m saying. Daily Kos, the Chron, and the Trib have more.

Paxton sues over deportation pause

by Charles Kuffner.

4 comments

That didn’t take long.

Best mugshot ever

Three days into the Biden administration, Texas Attorney General Ken Paxton has filed his first lawsuit against the federal government. The lawsuit seeks an halt to one of the president’s executive actions on immigration, a 100-day pause on some deportations.

The moratorium, issued the same day as the presidential inauguration, was one of a flurry of early executive actions from the new administration. It is part of a review and reset of enforcement policies within Customs and Border Protection, Immigration and Customs Enforcement, and the U.S. Citizenship and Immigration Services agencies as the Biden administration “develops its final priorities,” according to a statement from the Department of Homeland Security.

Paxton said the moratorium violates the U.S. Constitution and various federal and administrative laws, as well as an agreement between Texas and DHS.

“When DHS fails to remove illegal aliens in compliance with federal law, Texas faces significant costs,” reads the complaint, which was filed in federal court in the U.S. Southern District of Texas. “A higher number of illegal aliens in Texas leads to budgetary harms, including higher education and healthcare costs.”

The filing also alleges various other violations, including against posting-and-comment rules, as well as failure to ensure laws are “faithfully executed.” In a statement, a spokesperson for the Department of Homeland Security said they were “not able to comment on pending litigation.”

The moratorium excludes any immigrant who is “suspected of terrorism or espionage, or otherwise poses a danger to the national security of the United States,” those who entered after Nov. 1 and those who have voluntarily waived any rights to remain in the country, according to a DHS memo. It also retains an enforcement focus on people who have been convicted of an “aggravated felony” as defined by federal immigration law.

The first question one should ask of any lawsuit filed by Ken Paxton at this time, especially a politically-motivated lawsuit like this one, is whether it has any merit or if it’s just theater designed to rile up the rabble. Neither this story nor the Chron story examines that, though the latter does touch on some of the legal questions.

The case is before U.S. District Judge Drew Tipton, a Trump appointee who took the bench in Corpus Christi last June and previously practiced law in Houston. In a hearing held via Zoom on Friday, Tipton did not immediately rule on Texas’ request for a temporary restraining order. Instead, he said he would take the matter under advisement and vowed to make a decision quickly.

Administration officials did not respond to a request for comment, and a DHS spokesperson declined to comment on pending litigation. But in a memo issued Wednesday, DHS Acting Secretary David Pekoske said the moratorium was implemented as the agency shifts staff and resources at the southwest border, and to protect the health and safety of DHS personnel amid the pandemic.

“We must ensure that our removal resources are directed to the department’s highest enforcement priorities,” Pekoske added.

The order does not apply to noncitizens who: have engaged in or are suspected of terrorism or espionage or who otherwise pose a national security risk; were not in the U.S. before Nov. 1; or voluntarily signed a waiver to rights to remain in the U.S. as long as they’d been given “a meaningful opportunity to access counsel” beforehand. It also gives the acting director the discretion to allow deportations on a case-by-case basis.

The agreement Paxton refers to is one that the department, while still controlled by the Trump administration, signed preemptively with multiple jurisdictions, including the state of Arizona, that required the agency to give them six months to review and submit comments before moving forward on any changes to immigration policy, as Buzzfeed News first reported. The legal enforceability of those documents, however, has yet to be seen.

[…]

In the virtual hearing Friday, Will Thompson, an attorney for the state, argued that the DHS agreement was valid and precluded it from enacting policy changes before the 180-day feedback period has ended. Thompson also said Texas would suffer irreparable harm from the pause on deportations, such as increased education and health care costs for undocumented immigrants.

Department of Justice attorney Adam Kirschner raised several legal arguments for why the agreement is not enforceable, among them that it violated Article II of the Constitution by giving Texas, at least for 180 days, “veto power over immigration law,” which is within the jurisdiction of the federal government. Kirschner also said the state failed to identify injury that the policy would cause, other than “general budgetary concerns.”

At least you have an idea what they’re arguing about, but it’s still pretty dry. Daily Kos gets more into the merits.

Paxton “says Biden administration is violating the agreement TX signed w/ Trump’s DHS, which said the agency would check in with Texas before making changes,” BuzzFeed News’ Hamed Aleazis tweeted. Paxton’s threat demands DHS immediately rescind the memo, as well as “an immediate response or we will seek relief to enjoin your order, as contemplated by the Agreement.”

To put it plainly, Ken Paxton can eat shit. Legal experts like Santa Clara University School of Law professor Pratheepan Gulasekaram have criticized the agreements, calling them “completely unmoored from legal, constitutional ways of implementing policy,” BuzzFeed News previously reported. “The agreements, as Ken Paxton well knows, are blatantly illegal,” tweeted Aaron Reichlin-Melnick. “Of course, that’s never stopped him before. The Biden administration seems likely to take the correct step here; tell him to pound sand. The federal government can’t contract away its right to make policy changes.”

Not to mention that Cuccinelli was unlawfully installed at DHS! A federal court had already previously ruled that the truly very strange Cuccinelli had also been unlawfully appointed to head U.S. Citizenship and Immigration Services (USCIS). Reichlin-Melnick noted at the time that the previous administration had since dropped its appeal of that ruling, yet was still “letting him go to work every day.” Perhaps because they knew he’d be willing to put his signature to ridiculous policies like the one now trying to tie up the new administration.

.
Needless to say, this entire agreement is laughably illegal for all kinds of reasons:

– Signed by a DHS official unlawfully appointed
– Fails the basic requirement of contract law
– Delegates authority without Congressional permission.
– Enforcing it would violate federalism.

— Aaron Reichlin-Melnick (@ReichlinMelnick) 1:44 PM – 22 January 2021

The full thread is here, and you should also read this thread by Buzzfeed News immigration reporter Hamed Aleaziz, who suggests that federal judge Tipton could put the Biden order on hold as the suit is being heard. The ACLU and ACLU of Texas have filed an amicus brief in opposition to Paxton’s suit. This may be an early test of just how much Trump-appointed judges will abet in acting as roadblocks to anything President Biden wants to do.

If we finally get immigration reform…

by Charles Kuffner.

19 comments

It would have a big effect in Texas, for obvious reasons.

Just after being sworn in on Wednesday, President-elect Joe Biden plans to propose a major immigration overhaul that would offer a pathway to citizenship to up to 1.7 million Texans who are in the country without legal authorization.

The proposal, which Biden is expected to send to Congress on his inauguration day, would create an eight-year path to citizenship for the estimated 11 million unauthorized immigrants in the U.S., more than 500,000 of whom live in Harris and Bexar counties, according to the Migration Policy Institute. Those who qualify would be granted a green card after five years and could apply for citizenship three years later.

The plan would create a faster track for those protected by the Deferred Action for Childhood Arrivals program — more than 106,000 Texans as of June — and with temporary protected status, who could apply immediately for a green card. A Biden transition official on Tuesday confirmed the outline of the plan, which was first reported by the Washington Post.

The move positions immigration reform as a top priority for the new president, beyond tackling the coronavirus, for which Biden has proposed a $1.9 trillion relief package. Democrats’ slim control of Congress, meanwhile, puts a spotlight on Texas Republicans, especially U.S. Sen. John Cornyn, who campaigned last year on his support for the DACA program.

Democrats control the House, where a majority could pass Biden’s proposal, but they will need to build support from at least 10 Republican senators for it to get to Biden’s desk.

Immigration advocates have cheered the proposal and some experts say they’re more optimistic than they’ve been in years about the prospects of such a comprehensive overhaul.

Still, a deal on immigration has eluded Congress for decades and Biden’s proposal was already drawing resistance from the Senate’s most conservative members on Tuesday. U.S. Sen. Josh Hawley of Missouri stopped an effort to fast-track Biden’s nominee to lead the Department of Homeland Security, citing the president-elect’s “amnesty plan for 11 million immigrants.”

Cornyn, meanwhile, said as recently as this summer that he had given up on comprehensive reform, calling at the time for incremental action on issues such as DACA.

“In the entire time I’ve been in the Senate, when we try to do comprehensive immigration reform, we fail,” Cornyn said in June. “We have a perfect record of failure when it comes to comprehensive immigration reform.”

Well, you can be part of the solution this time if you want to, John. We know your junior colleague will do everything he can to block this, so the choice is yours.

There are things that President Biden can do with executive orders, but as we know from previous litigation, that can be precarious. Getting the legislation through has to be the goal, especially since this time it’s all about providing relief and not further increasing the militarization of the border. Dems missed their chance on this in the first years of the Obama presidency. Lord only knows when the stars will align like this again. Get it done. Mother Jones and Daily Kos have more.

A brief summary of what the next two years will be like

by Charles Kuffner.

25 comments

What will Republicans do without Trump?

“The Republican Party is at a crossroads like it’s never been before, and it’s gonna have to decide who it is,” said Corbin Casteel, a Texas GOP operative who was Trump’s Texas state director during the 2016 primary.

No one seems to be under the illusion that Trump will fade quietly. Since losing the election to Joe Biden in November, Trump has launched baseless attacks on the integrity of the election as most prominent Texans in his party let his claims go unchallenged. Some of Trump’s most loyal allies in Texas expect he’ll be a force here for years.

“The party is really built around Donald Trump — the brand, the image, but most importantly, his policies and what he accomplished,” [Dan] Patrick said during a Fox News interview Thursday. “Whoever runs in 2024, if they walk away from Trump and his policies, I don’t think they can get through a primary.”

To Texas Democrats, Trump has been a highly galvanizing force who created new political opportunities for them, particularly in the suburbs. He carried the state by 9 percentage points in 2016 — the smallest margin for a GOP nominee in Texas in two decades — and then an even smaller margin last year. But his 6-point win here in November came after Democrats spent months getting their hopes up that Trump would lose the state altogether, and they also came up woefully short down-ballot, concluding the Trump era with decisively mixed feelings about his electoral impact at the state level.

More broadly, some Texas Democrats believe Trump is leaving a legacy as a symptom of the state’s current Republican politics, not a cause of it.

“Frankly I don’t think he changed the Republican Party in Texas,” said Gilberto Hinojosa, the state Democratic Party chair, adding that Trump has instead magnified the “extreme politics and tendencies” that Texas Republicans have long harbored. “The things that [Trump] stands for — the white nationalism, the anti-LGBT [sentiment], the just flat-out racism, just the absolute meanness — that’s what the Republican Party has been in Texas for quite some time.”

As for Texas Republicans’ embrace of Trump, Hinojosa added, they “are the people that Trump talks about when he says he could shoot someone in the middle of Fifth Avenue and not lose their support.”

[…]

To be sure, it’s entirely possible Republicans unite in the next year the way political parties do when they’re in the minority — with an oppositional message to the opposing administration. But the GOP’s longer-term challenges could prove harder to resolve. In the final years of Trump, some in the party drifted from any unifying policy vision. At the 2020 Republican National Convention, the party opted not to create a new platform, saying it would instead “continue to enthusiastically support the President’s America-first agenda.”

November’s elections in Texas did little to settle the debate over which direction the party should go. Those who want to move on note that Trump won with the narrowest margin for a GOP presidential candidate this century, and swing-seat Republican congressional contenders largely outperformed him in their districts.

“Most every Republican that was successful, with the exception of a handful, outperformed Donald Trump by a significant margin,” Hurd said. “If you’re not growing, you are dying, and if we’re not expanding to those voters that are disaffected and don’t believe in the message that Democrats are providing, then we’re not going to be able to grow.”

On the other hand, Trump’s 6-point margin was bigger than expected, and he performed surprisingly well in Hispanic communities in South Texas. Former Texas GOP Chair James Dickey said Trump’s message was “particularly effective” in swaths of the state that aren’t typically looked at as political bellwethers.

“His biggest impact has been a return to populist roots and an expansion of the party in minority communities, which, again, is a return to its roots,” Dickey said.

My medium-lukewarm take based on 2018, 2020, and the Georgia runoffs is that Republicans do better with Trump on the ballot than not. Dems made the big gains in 2018 in part because Republican turnout, as high as it was in that off-year, wasn’t as good as it could have been. The GOP got some low-propensity voters to turn out in November – as did Dems – and now they have to try to get them to turn out again. Maybe they will! Maybe with Trump gone some number of former Republicans who voted Dem because they hated Trump will find their way back to the GOP. Or maybe those folks are now full-on Dems. The national atmosphere will be critical to how 2022 goes – the economy, the vaccination effort, the Senate trial of Trump, further fallout from the Capitol insurrection, and just overall whether people think the Dems have done too much, too little, or the right amount. Dems can only control what they do.

And that’s going to mean playing some defense.

Democrats are headed back to the White House, and Texas Republicans are gearing up to go back on offense.

For eight years under President Barack Obama, Texas was a conservative counterweight to a progressive administration, with its Republican leaders campaigning against liberal policies on immigration, the environment and health care and lobbing lawsuit after federal lawsuit challenging scores of Democratic initiatives. When Republicans could not block policies in Congress, they sometimes could in the courts.

Now, as Joe Biden enters the White House promising a slew of executive orders and proposed legislation, the notorious “Texas vs. the feds” lawsuits are expected to return in full force. And state leaders have begun to float policy proposals for this year’s legislative session in response to expected action — or inaction — from a White House run by Democrats.

[…]

Under Trump, Texas has often found itself aligned with the federal government in the courts. Most notably, the Trump administration lined up with a Texas-led coalition of red states seeking to end the Affordable Care Act. That case is pending before the U.S. Supreme Court.

Once Biden enters the White House and his appointees lead everything from the Environmental Protection Agency to the Department of Homeland Security, Texas’ conservative leaders will return to a familiar posture: adversary, not ally, to those making national policy.

Paul Nolette, a professor at Marquette University who studies federalism, said he expects Texas to be “at the top of the heap” among Republican attorneys general challenging the new administration in court.

According to Nolette, the number of multi-state lawsuits against the federal government skyrocketed from 78 under eight years of Obama to 145 during just four years of Trump.

“Republican AGs will take a very aggressive multi-state approach,” Nolette predicted. “It’ll happen quickly.”

It should be noted that a lot of those lawsuits were not successful. I don’t know what the scoreboard looks like, and some of those suits are still active, so write that in pencil and not in Sharpie. It should also be noted that the goal of some of these lawsuits, like ending DACA and killing the Affordable Care Act, are not exactly in line with public opinion, so winning may not have the effect the GOP hopes it would have. And of course AG Ken Paxton is under federal indictment (no pardon, sorry), leading a hollowed-out office, and not in great electoral shape for 2022. There’s definitely a chance Texas is not at the front of this parade in 2022.

My point is simply this: There’s a lot of ways the next two years can go. I think the main factors look obvious right now, but nothing is ever exactly as we think it is. I think Democrats nationally have a good idea of what their goals are and how they will achieve them, but it all comes down to execution. Keep your eye on the ball.

Census Bureau will miss deadline that would allow for apportionment shenanigans

by Charles Kuffner.

1 comment

The Census Bureau will miss a year-end deadline for handing in numbers used for divvying up congressional seats, a delay that could undermine President Donald Trump’s efforts to exclude people in the country illegally from the count if the figures aren’t submitted before President-elect Joe Biden takes office.

The Census Bureau plans to deliver a population count of each state in early 2021, as close to the missed deadline as possible, the statistical agency said in a statement late Wednesday.

“As issues that could affect the accuracy of the data are detected, they are corrected,” the statement said. “The schedule for reporting this data is not static. Projected dates are fluid.”

It will be the first time that the Dec. 31 target date is missed since the deadline was implemented more than four decades ago by Congress.

Internal documents obtained earlier this month by the House Committee on Oversight and Reform show that Census Bureau officials don’t expect the apportionment numbers to be ready until days after Biden is inaugurated on Jan. 20.

Once in office, Biden could rescind Trump’s presidential memorandum directing the Census Bureau to exclude people in the country illegally from numbers used for divvying up congressional seats among the states. An influential GOP adviser had advocated excluding them from the apportionment process in order to favor Republicans and non-Hispanic whites.

“The delay suggests that the census bureau needs more time to ensure the accuracy of census numbers for all states,” said Terri Ann Lowenthal, a former congressional staffer who specializes in census issues.

[…]

Former Census Bureau director John Thompson said the quality of the data is “the overarching issue” facing the Census Bureau.

“If these are not addressed, then it is very possible that stakeholders including the Congress may not accept the results for various purposes including apportionment,” said Thompson, who oversaw 2020 census preparation as the agency’s leader during the Obama administration.

He said in an email that missing the Dec. 31 target date “means that the Census Bureau is choosing to remove known errors from the 2020 Census instead of meeting the legal deadline.”

See here and here for some background. It’s one less way for Trump to screw things up beyond his own administration’s reign, and we should all be happy for it. There’s also a bill in the Senate to extend the deadline for Census results by four months, which the Census Bureau had asked for back in April but which got sidelined by (among other things) the usual Trump indifference. I presume that will have a much better chance of passing if the Dem candidates can win in Georgia, but we’ll see.

SCOTUS mostly punts on Census apportionment shenanigans

by Charles Kuffner.

Comments are off for this post

They seem to be hoping that the problem will solve itself, while applying a partisan litmus test to when it is appropriate for them to step in.

The Supreme Court dismissed a challenge to Donald Trump’s final sabotage of the census on Friday, deeming it premature. Trump seeks to exclude an estimated 10.5 million people from the data used to divide up congressional seats among the states because they are undocumented immigrants. This policy, if successful, would strip seats in the House of Representatives from diverse states with large immigrant communities. Because it has not been implemented, however, the Supreme Court determined, by a 6–3 vote, that the case is not yet ripe for resolution. All three liberal justices dissented.

Friday’s decision in Trump v. New York does not come as a surprise: At oral arguments, several conservative justices seemed to be looking for a way out of deciding whether the president has the power to manipulate the census this way. A few, including Justices Brett Kavanaugh and Amy Coney Barrett, even appeared to recognize that Trump’s policy is unlawful. The Constitution requires the apportionment of House seats based on “the whole number of persons in each state,” and the government has never before in history sought to exclude undocumented immigrants. By declaring that an entire class of immigrants are not “persons” who reside in the United States, Trump is trying to pass a modern three-fifths clause—except his policy reduces millions of immigrants to zero-fifths of a person.

Still, the Supreme Court’s conservative majority decided that this threat was insufficient to create a live controversy due to the uncertainty that plagues this case. (It did so in an unsigned opinion apparently joined by all six conservatives.) The federal government does not actually know how many undocumented immigrants live in each state. Trump has directed the Census Bureau to use existing administrative records to obtain these figures. But this process is ongoing, and the bureau has warned that it may not produce the data for weeks—possibly not until Trump has left office. (Joe Biden will undoubtedly retract the policy if it has not yet been executed.) The administration has speculated that it may narrow its goal by excluding only subsets of immigrants, like those in detention. (There are more than 50,000 people in ICE detention today, so even that exclusion could affect apportionment and funding.)

In light of this uncertainty, the majority found that the plaintiffs—which include states that may lose representation and local governments that may lose funding—lacked standing to attack the policy in court. Trump’s policy “may not prove feasible to implement in any manner whatsoever, let alone in a manner substantially likely to harm any of the plaintiffs here,” the majority asserted. In other words, Trump might fail to carry out his scheme, which would spare the plaintiffs any injury. Moreover, if the president only excludes a subset of immigrants, like ICE detainees, the plan might not “impact interstate apportionment.”

The court also found that the case “is riddled with contingencies and speculation,” declaring that “any prediction how the Executive Branch might eventually implement” Trump’s policy is “no more than conjecture.” As a result, “the case is not ripe,” and the plaintiffs must come back when they can contest a more explicit policy. The court clarified that “we express no view on the merits of the constitutional and related statutory claims presented.”

[…]

Friday’s ruling also entrenches a new rule that emerged after Barrett replaced Justice Ruth Bader Ginsburg: Plaintiffs only have standing when they are challenging a policy that the conservatives do not like. In November, by a 5–4 vote, the ultraconservatives blocked a COVID-19 restriction on New York City churches that was no longer in effect. As Roberts explained in his dissent, the restrictions were not in force when the court issued its decision. Yet the court blocked them anyway, reasoning that the governor might enforce them again in the future.

It is difficult to square that decision with Friday’s census punt. Trump has stated his policy in stark terms and directed the government to execute it as soon as possible. There is a serious, looming threat that his administration will carry it out in the near future. No one actually knows whether Biden or Congress can reverse the policy after it has been implemented. Yet the conservative justices still considered the case premature. This inconsistent approach gives the impression that at least five conservative justices are manipulating the rules to roll back blue states’ COVID orders while giving Trump leeway to test out illegal policies. Friday’s decision is not the end of this litigation, and the administration may ultimately fail to rig the apportionment of House seats. It is framed as a modest, narrow, technical decision. But the court has revealed its priorities, and they have nothing to do with restraint.

See here and here for the background. Texas would also likely lose a seat or two if this went into effect, not that you’d know it from the total radio silence of our state leaders. My hope is of course that the Census does not deliver this data before January 20, in which case the Biden administration could just drop the subject and proceed as we have always done. It’s not great that we have to rely on that hope, of course. Daily Kos and TPM have more.

We might get better Census apportionment data

by Charles Kuffner.

1 comment

Some good news.

The Census Bureau has identified issues in the data from the 2020 decennial census that will take an additional 20 days or so for it to fix, and thus delay the release of survey’s apportionment data until after President Trump leaves office, TPM has learned.

According to a person inside the Census Bureau, the additional time it will take to reprocess the data in question has pushed back the target date for release of the state population counts until Jan. 26 – Feb. 6.

That would mean President-elect Joe Biden will be in the White House when the Census Bureau delivers to him the numbers for him to transmit to Congress for the purposes of determining how many House seats each state will get for the next decade.

President Trump had been seeking to exclude undocumented immigrants from that count, with a policy that several lower courts have deemed illegal in rulings Trump is hoping the Supreme Court will overturn. Excluding undocumented immigrants from that count would decrease the House seats given to immigrant-rich states like California, and increase the representation for whiter, more Republican parts of the country.

The issues that the Census Bureau has identified in the data are standard for any census, the source told TPM, and it is routine for the Census Bureau to have to do this kind of reprocessing.

Shortly after this story was published, Census Director Steve Dillingham confirmed the “anomalies” in a statement to TPM that made no explicit mention of how fixing them will impact the timeline for releasing the data.

“During post-collection processing, certain processing anomalies have been discovered. These types of processing anomalies have occurred in past censuses. I am directing the Census Bureau to utilize all resources available to resolve this as expeditiously as possible. As it has been all along, our goal remains an accurate and statistically sound Census,” Dillingham said.

I don’t know if that puts an end to the ongoing Census shenanigans, but anything that takes the process out of the Trump administration’s hands is a good thing.

October Census deadline restored

by Charles Kuffner.

Comments are off for this post

Good news, though as with everything we can’t be sure just yet that it’s for real.

A federal judge in California late Thursday blocked the Trump administration from stopping the 2020 Census count next week, saying it should continue until Oct. 31, the date the Census Bureau had planned on before the administration abruptly shortened the count.

U.S. District Judge Lucy Koh in the Northern District of California granted a preliminary injunction in the case brought by the National Urban League — a group of counties, cities, advocacy groups and individuals — and other groups. Koh had, earlier this month, issued a temporary restraining order to keep the count underway. The case is likely to be appealed to the U.S. Supreme Court.

In a hearing Tuesday, Koh had expressed irritation with Justice Department lawyers for missing a deadline she had set for them to produce internal documents connected to the case.

She referred repeatedly to documents finally released over the weekend and Monday in which career bureau officials said the data could not be properly collected and delivered to the president on the government’s new timeline.

See here and here for the background. The Chron lays out what’s at stake locally.

Natalia Cornelio, legal affairs director for [County Commissioner Rodney] Ellis, said at the point Trump yanked back the deadline in early August, only 63 percent of households nationwide and 54 percent in Houston had responded to the census.

Despite those numbers, on Aug. 3, the census director abruptly announced what the court is calling the “re-plan,” which shortened the timeline for households to respond by Sept. 30.

Cornelio said the accuracy of the census count is critical to Harris County’s future.

“Its outcome determines political representation and billions of dollars of funding for healthcare, education, disaster relief, and housing,” she said.

Right now, Harris County is looking at an estimated undercount of 600,000 households, based on data from Civis Analytics, the company the county has partnered with to track its census outreach, she said.

One area likely to suffer from an undercount is the southern portion of the county, a pie-slice-shaped region extending from downtown Houston to Bellaire to League City, according to Steven Romalewski, who maps census data for the Center for Urban Research at CUNY. In that area, 11 percent of the door-knocking has yet to be completed, a feat that would likely would have been impossible with less than a week to spare to the Sept. 30 deadline, he said.

In parts of Fort Bend and Galveston counties, nearly 18 percent of the door-knocking needs to be finished. And in Montgomery County 12 percent of homes have yet to be documented.

Romalewski said the ruling could have a major impact on areas with a relatively low “completion” rate for the door-knocking operation that’s meant to visit every household that has not responded. With more time to complete the process, census enumerators can attempt to visit households more than once and will be likelier to talk with someone in-person or determine that a unit is vacant. The fallback, which census officials consider less accurate, is to to count residents through administrative records.

I have a hard time understanding why any decent person would think this was a good state of affairs. At least we have a chance now to try and get this close to correct. That’s pending the likely appeal to SCOTUS, and who knows what they may do at this point. But at least for now, there’s a chance.

Endorsement watch: The Susan Collins of Texas

by Charles Kuffner.

1 comment

Three things in life are certain: Death, taxes, and certain Chron endorsements.

Rep. Sarah Davis

The voters in state House District 134 — a swing district that covers all or parts of River Oaks, Bellaire and Meyerland and includes the Texas Medical Center — face a tough choice in the Nov. 3 election.

Five-term Republican incumbent Rep. Sarah Davis and Democratic challenger Ann Johnson are both well-qualified, skilled communicators whose many talents would serve them well in the Legislature.

We recommend Davis, 44, based on her experience, growth in office and independence.

A rare Texas Republican who supports abortion rights, she has moved from the tea party positions of her first 2010 victory to embrace the Affordable Care Act provisions of Medicaid expansion and coverage of pre-existing conditions as well as bucking her party on other issues.

[…]

Johnson has stressed her policy differences with Davis on immigration and gun control, where the incumbent is more in line with the GOP. Johnson has criticized Davis’ vote to let school districts arm teachers and to require universities to permit guns in campus parking lots and her sponsorship of a “show me your papers” bill to allow local law enforcement officials to ask about immigration status.

Those are not measures supported by the editorial board.

And yet. In the same way that the Chron endorsed Orlando Sanchez for Treasurer in four straight elections, so have they endorsed Sarah Davis consistently since 2012. Look, if you want to believe that Sarah Davis is a force for good for reproductive rights and LGBTQ equality and even expanding Medicaid, I can’t stop you. I happen to think that campus carry and “sanctuary cities” legislation are indelible stains on her record, but you do you. My opinion is that it’s better to maximize the odds of a Democratic House than to depend on a singular Republican savior. Your mileage may vary.

(Where the post title came from.)

Census shenanigans halted for now

by Charles Kuffner.

3 comments

[On] Saturday, US District Judge Lucy Koh issued a temporary restraining order to stop Census Bureau officials from winding down door-knocking and online, phone, and mail response collection by September 30—a month early—writing that the shortened census timeline could cause “irreparable harm.”

“Because the decennial census is at issue here, an inaccurate count would not be remedied for another decade, which would affect the distribution of federal and state funding, the deployment of services, and the allocation of local resources for a decade,” Koh wrote.

The US Census Bureau had originally planned to end their count by October 31, a date chosen to accommodate delays caused by the pandemic. But on August 3, the bureau announced that it would stop collecting census responses by the end of September, and was attempting to “improve the speed of our count without sacrificing completeness.” At the time, just 63 percent of households had responded. Immediately afterward, four former census bureau directors issued a public statement explaining that a shortened timeline would “result in seriously incomplete enumerations in many areas of the country.” Later that month, the Government Accountability Office, a nonpartisan watchdog, also reported that “compressed timeframes” in the 2020 census could undermine the overall quality of the census count.

Now, at least until a hearing on September 17, the Census Bureau may not take steps to wind down its counting operations, such as terminating field staff.

The Chron adds some detail.

At a hearing Friday, Justice Department attorney Alexander Sverdlov told Koh that any “anxiety” about the census was “not warranted” and that operations were shutting down only when 85% to 90% of residents in a particular locale had responded. He argued in a court filing that said the government’s “decisions on how and when to complete a census turn on policy choices that are unreviewable political questions.”

The population count is crucial for states’ U.S. House representation and the distribution of $800 billion in federal aid each year. Separately, President Trump is seeking to exclude undocumented immigrants from the census, an action challenged by California and other states in multiple lawsuits.

Koh questioned the government’s explanations at Friday’s hearing and was equally skeptical in Saturday’s ruling.

The administration has insisted that moving the deadline up to Sept. 30 was necessary to deliver the census results to the president by Dec. 31, rather than by next April, under a previous timetable. But Koh said the Census Bureau’s deputy director, Albert Fontenot, “acknowledged publicly less than two months ago that the bureau is ‘past the window of being able to get accurate counts to the president by Dec. 31.’” She said the bureau’s head of field operations made the same admission in May.

Koh also quoted Fontenot as saying, in a court filing Friday night, that the bureau has begun terminating its temporary field staff in areas that have completed their work, and it is difficult to bring them back. That underscores the need for a restraining order halting any further cutbacks until the legality of the one-month delay is resolved, she said.

See here for the background. Harris County, along with Commissioners Ellis and Garcia, are among the plaintiffs in this lawsuit. Perhaps if we can wait to deliver the results to the President until, say, January 21, we can feel a bit more comfortable that they will get a proper review, and that the data is sufficiently accurate. Perhaps we could also then see about fixing anything that was clearly effed up thanks to the Trump team’s constant efforts at sabotage. If we are blessed with an all-Democratic government, we can pass a bill to allow statistical sampling, which would help a lot. There’s no reason to trust anything this administration has done with the Census, and every reason to give a new administration a chance to fix the more egregious errors. The Trib has more.

Lawsuit filed to restore original Census deadline

by Charles Kuffner.

Comments are off for this post

Citing the high stakes of a botched census, Harris County and two of its Democratic county commissioners have signed on to a federal lawsuit trying to block the Trump administration’s efforts to end counting for the 2020 census a month earlier than planned.

The constitutionally required count of everyone living in the country had been extended due to the coronavirus pandemic and was to run through Oct. 31. But the Census Bureau announced earlier this month it will end the count sooner, moving up the deadline for responding to Sept. 30.

A federal lawsuit filed Monday in California alleges that the shortened schedule is unconstitutional because it will not produce a fair and accurate count and that the Census Bureau’s move violates federal administrative law because the decision was “arbitrary and capricious.”

The lawsuit is led by the National Urban League and the League of Women Voters. Harris County, which is the state’s largest, joined in along with other local entities including the city of Los Angeles and King County in Washington. Harris County Commissioners Rodney Ellis and Adrian Garcia are signed on as individual plaintiffs.

“Undercounted cities, counties, and municipalities will lose representation in Congress and tens of millions of dollars in funding,” the lawsuit reads. “And communities of color will lose core political power and vital services. In contrast to these dire stakes, the immediate solution to this problem is simple: set aside and enjoin implementation of the impossibly-shortened Rush Plan, which is based on an unexplained change of position, and allow the Census Bureau to implement the plan that it had designed to fulfill its constitutional duties during the pandemic.”

[…]

The October cutoff had offered organizers crucial overtime for the count after the coronavirus pandemic derailed canvassing and outreach efforts that in some regions of the state, like in Harris County, had been in the works for years.

But those efforts have been further disrupted by what Harris County and other plaintiffs in the lawsuit dubbed as the “rush plan.” Mailers ordered before the change had to be redone, with county workers forced to purchase stickers to cover the old deadline on those materials.

In announcing the new deadline, Census Bureau Director Steven Dillingham said the bureau planned to hire more employees “to accelerate the completion of data collection” and avoid a delay in reporting counts for seats in Congress and the distribution of redistricting data.

“The Census Bureau’s new plan reflects our continued commitment to conduct a complete count, provide accurate apportionment data, and protect the health and safety of the public and our workforce,” Dillingham said in a statement.

But the earlier deadline has heightened the possibility that Texas will be undercounted and that low-income and Hispanic Texans in particular — who were already at the highest risk of being missed — will go uncounted at a time when the coronavirus pandemic is ravaging their communities.

here for some background, and here for a peek at the lawsuit. Combined with Donald Trump’s surely illegal order to keep undocumented immigrants from being counted for the purposes of apportionment, it’s like Trump and his enablers really don’t want Texas to get any additional Congressional districts next decade. I continue to marvel at Greg Abbott and Dan Patrick and Ken Paxton’s ability to shrug that kind of insult off. By the way, that “arbitrary and capricious” language is a sign that the plaintiffs are aiming for a ruling that Trump has once again violated the Administrative Procedures Act, the federal law that has killed multiple similar efforts by Trump in the past. Let’s hope we can add this one to that trash heap.