Ken Paxton pushes reversal of Supreme Court ruling restricting states from enforcing immigration law


Attorney General Ken Paxton is pushing to overturn a key U.S. Supreme Court decision that hamstrings states from enforcing federal immigration law, a move that could dramatically expand Texas’ offensive against President Joe Biden’s policies at the southern border.

Paxton has said for months that he is looking for a legal path to challenge the 2012 ruling in the case, known as Arizona v. United States. At a committee hearing last week, First Assistant Attorney General Brent Webster — Paxton’s top deputy — encouraged state legislators to consider passing laws that could spur a legal case “so that once again Texas could be enabled through federal law to enforce immigration.”

Under the Biden administration, the Republican attorney general has emerged as a chief antagonist on immigration, using a barrage of lawsuits to kill several of the president’s high-profile policies and force the reinstatement of Trump-era measures such as the “Remain in Mexico” program. Gov. Greg Abbott and other Republican state officials have also spearheaded construction of a wall covering portions of the U.S.-Mexico border and sent thousands of state police and soldiers to apprehend migrants in South Texas — an approach that critics and defense attorneys argue is already blurring the line between legitimate enforcement and state overreach.

The precedent established in the Arizona case has been among the biggest obstacles for Texas Republicans, limiting the scope of their state-sponsored border crackdown and serving as the legal justification behind a sweeping attempt to toss out misdemeanor charges against hundreds of migrants arrested under the governor’s “catch-and-jail” program. The Arizona decision also underpinned a Biden administration lawsuit last year that blocked the Texas governor’s order for state troopers to pull over drivers who they suspect of transporting migrants.

Republican leaders have been careful to insist they are not enforcing federal law themselves since states are generally prevented from taking such action under the 2012 decision.

A spokesman for Paxton, who is running for re-election this fall, said the attorney general does not necessarily want Texas to enact its own immigration policies, but rather regain the authority “to enforce federal immigration laws as a backstop to the federal government failing or refusing to do their job.”

“Arizona v. United States needlessly limits what Texas can do to pick up the slack, and it absolutely should be overturned,” Paxton said in a statement. “Over the course of the remainder of Biden’s first term, there may be facts giving rise to a challenge to Arizona. I welcome it.”

The Arizona decision arose from an Obama administration challenge to the state’s 2010 immigration law that sought to crack down on immigrants living in the country without legal authorization.

In a 5-3 ruling, the court upheld the law’s core provision, later modeled by Texas, that requires state authorities to check the immigration status of anyone they stop or detain if they suspect the person to be in the country illegally. But over the objection of three justices, the court struck down three other provisions of the law, including one that authorized police to arrest anyone suspected of being in the country illegally. The dissenting trio included sitting Justices Samuel Alito and Clarence Thomas.

In the majority opinion, then-Justice Anthony Kennedy wrote that the federal government has “broad discretion” in setting immigration policy, including decisions involving the removal of migrants who are in the country illegally. He noted that despite Arizona’s “understandable frustrations with the problems caused by illegal immigration … the state may not pursue policies that undermine federal law.”

“The court very clearly stated that immigration enforcement is exclusively within federal jurisdiction,” said Geoffrey Hoffman, director of the immigration clinic at the University of Houston Law Center.

In a town hall last October, Paxton made clear that he feels emboldened to bring the case back before the Supreme Court at least in part because of its bolstered conservative wing. Former President Donald Trump appointed three conservative judges to the court during his term, including two who took over for more liberal justices.

Kate Huddleston, an attorney with the ACLU of Texas and a frequent critic of Abbott’s border initiative, said overturning the Arizona decision and granting states power to deport or expel immigrants “would be an unprecedented and outrageous shift from all of modern immigration law.”

“I really cannot overstate how legally outrageous it is,” she said, adding, “The power to admit and expel individuals has always been understood as under the purview of the federal government.”

Conservatives have pushed state leaders to test the legal boundaries of state immigration powers, arguing such an approach is needed to counter an array of Biden administration policies that they view as overly lenient toward asylum-seeking migrants and drug cartels alike.

Shortly before the governor launched his plan last year to round up migrants on state trespassing charges, the Heritage Foundation, a leading conservative policy group, published an op-ed — co-authored by the former acting deputy homeland security secretary under Trump — that urged Abbott to “do everything that is constitutionally permissible” to handle “an invasion of illegal immigrants.”

Biden administration officials have said their approach focuses on deporting immigrants living in the United States without legal authorization who have been convicted of serious crimes, mirroring early guidance from Biden that Paxton challenged in court. During the 2021 fiscal year, U.S. immigration officials reported sharp decreases in deportations and immigration arrests within the country, despite encountering a record number of migrants crossing the southern border without legal authorization.

“That may take him into some gray areas, like using state officials to enforce portions of immigration law not in clear contravention of federal law,” the Heritage Foundation piece said. “The governor has an obligation to exercise every option available. If the Biden administration then tries to limit a governor’s attempt to deal with an invasion, it will be up to the Supreme Court to decide what the proper bounds are.”

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