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.