How Texas ushered in the new era of immigration policy making

Legal experts say it’s an unprecedented state of affairs that has been building over the past three presidential administrations — and Texas Republicans led the way.

In 2014, former President Barrack Obama rolled out an immigration program that would grant temporary work permits to 4 million immigrants who were parents of Americans and legal residents, and who had been in the country since 2010 without committing major crimes.

Republicans were outraged. Greg Abbott — in the final weeks of his time as attorney general after winning his first run for governor — said Obama “circumvented Congress and deliberately bypassed the will of the American people.”

Abbott sued almost immediately, arguing Texas would lose millions of dollars if it had to provide a license to almost 600,000 eligible immigrants in the state. Twenty-five other states joined the lawsuit, which eventually convinced the Supreme Court to block the program.

“It became a template,” said Geoffrey Hoffman, director of the University of Houston Law Center’s immigration clinic.

The courts, which had long given broad leeway to presidents to set policy on immigration, are now more willing than ever to step in and stop them. Experts say it’s a product of the increased politicization of the issue, as well as years of inaction by Congress to fix what many see as a broken system.

“Immigration used to be a backwater issue at best among attorneys general of the United States until a few years ago, until they realized the potency of the politics of immigration,” said Muzaffar Chishti, a senior fellow at the nonpartisan Migration Policy Institute.

“This has now become really a war,” Chishti said. “Republican states have now decided to become the government in exile for Trump.”

A federal judge in Louisiana on Friday stopped the Biden administration from ending a Trump-era public health order that officials have used to immediately expel most migrants crossing the border, ruling on behalf of 21 GOP states that argued the Centers for Disease Control and Prevention had not adequately considered the burden that a surge in migration would put on them.

Texas was not a part of that lawsuit, but Attorney General Ken Paxton has successfully sued to keep Biden from narrowing the use of the order, known as Title 42 and enacted to contain COVID-19, as it pertains to unaccompanied minors who cross the border.

Texas-led lawsuits have also convinced courts to block Biden’s attempts to put a moratorium on deportations during his first 100 days in office and to overturn the Trump-era “Remain in Mexico” policy, which requires asylum seekers to await the outcomes of their cases south of the border.

“For the first 150 years of immigration case law, it’s case after case after case after case of courts saying, ‘We’re not going to get involved in this; this is the prerogative of the executive.’ Now we’re just not seeing that,” said Leon Fresco, an immigration attorney based in Washington, D.C. “The question is, is this going to be the permanent state of affairs where basically there’s nothing a president can do on immigration?”

The Supreme Court appears to be wrestling with that question as it considers two immigration cases now, including a Texas-led challenge to Biden’s bid to end the “Remain in Mexico” policy. The justices asked parties in that case to demonstrate whether they actually have jurisdiction over the policy, and whether a lower court overstepped its authority when it blocked Biden’s cancellation of it.

Experts say it remains to be seen how exactly the new conservative majority of the court will land on immigration as a whole.

‘Remain in Mexico’ tests high court

Before Republicans gained a 6-3 majority on the court with the confirmation of Justice Amy Coney Barrett, the high court had gone back and forth on immigration, with Chief Justice John Roberts serving as a key swing vote.

The court allowed Trump to move ahead with some of his signature policies, including a travel ban that Roberts wrote in a majority opinion was “squarely within the scope of Presidential authority.”

But Roberts also led a majority opinion blocking Trump’s attempt to end the Obama-era Deferred Action for Childhood Arrival program, which temporarily allows immigrants who came to the U.S. when they were children to stay in the country. In that opinion, Roberts wrote that the administration had the authority to end the program, but had not gone about doing so correctly, violating the Administrative Procedures Act.

Texas’ challenge to the “Remain in Mexico” policy, which the court heard arguments in last month, will be a key first test of the new court. Texas argues that eliminating the program will create a burden on states along the border, where many migrants would likely be released after being apprehended.

It’s one of a series of cases Texas has pursued as Paxton hunts for a legal path to overturn a key 2012 Supreme Court ruling that keeps states from enforcing immigration laws. In the majority opinion in that case, known as Arizona v. United States, then-Justice Anthony Kennedy wrote that the federal government has “broad discretion” in setting immigration policy and that the state could not pursue policies that “undermine federal law.”

Abbott, meanwhile, has said he wants to challenge another core immigration ruling, known as Plyler v. Doe, which mandates public schools educate children of immigrants in the country without paperwork.

While Republican states have been successful in many of their attempts to stop Biden’s immigration policies, they are not alone in using the courts to challenge presidents.

Democratic attorneys general did the same during the Trump administration to some success, especially early in the former president’s term. Democratic states stopped Trump’s attempt to add a question about citizenship to the 2020 census and won a series of early cases against Trump’s travel ban, the final version of which was significantly narrower than originally written.

Chishti said Democrats filed 126 multi-state lawsuits against Trump. Republicans filed 45 against the Obama administration. So far, they have filed at least three dozen against Biden, he said.

Legal experts say the outcome is clear: Courts are more willing than ever to take immigration cases seriously.

“All of these issues have been traditionally sacrosanct,” Hoffman said. “I think we’re seeing something actually very new in the way the courts are handling these issues.”

John Colyandro, former senior adviser and policy director to Abbott during his time as attorney general, said the strategy was Abbott’s brainchild and it was born out of necessity.

“Congress, since 1986, has either been unwilling or incapable of acting on immigration policy; states and subdivisions of the state have resorted to the courts to try to get some action, some relief as it relates to the broader issue of immigration in the United States,” Colyandro said.

“Because of this failure to act, there was a desire to get something done. So whether or not there was a true assessment of whether it would be successful, there was a sense that states, principally Texas, had to try.”

The impasse in Congress over immigration has also pushed presidents to increasingly turn to executive orders to set policy, even when the legality of doing so is murky.

“Here we are, all these years later, and these major issues are yet to be resolved,” Colyandro said. “And yet they sit at the feet of the judiciary.”