New House Bill Would Let States Sue Feds Over Failure To Enforce The Border
After SCOTUS ruled states had no standing to sue before, House GOP wants to change that
Like so many other bills, even the name makes a political statement. This one is called the ‘Standing Up To The Executive Branch For Immigration Enforcement Act”… Shortened To ‘Sue For Immigration Enforcement Act’.
The Bill, introduced on Wednesday comes in response to one of the many legal battles that Texas and Louisiana fought with Biden’s Feds. This battle was over immigration. From SCOTUSBlog last June:
In a major victory for the Biden administration, the Supreme Court on Friday ruled that Texas and Louisiana do not have a legal right, known as standing, to challenge a Biden administration policy that prioritizes certain groups of unauthorized immigrants for arrest and deportation. The justices therefore did not weigh in on the legality of the policy itself, instead reversing a ruling by a federal district court in Texas that struck down the policy. The vote was 8-1. Justice Brett Kavanaugh wrote for a majority that included Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. Justice Neil Gorsuch wrote an opinion in which he agreed that the states lacked standing, but for a different reason; his opinion was joined by Justices Clarence Thomas and Amy Coney Barrett (who wrote her own concurring opinion, joined by Gorsuch).
Justice Samuel Alito was the lone dissenter. He complained that the court’s decision left states “already laboring under the effects of massive illegal immigration even more helpless.”
The policy at the center of the case, United States v. Texas, was outlined in a September 2021 memorandum by Secretary of Homeland Security Alejandro Mayorkas. The memorandum explains that because the Department of Homeland Security does not have the resources to apprehend and deport all of the more than 11 million noncitizens who could be subject to deportation, immigration officials should prioritize the apprehension and deportation of three specific groups of people: suspected terrorists; noncitizens who have committed crimes; and those caught recently at the border.
The ruling exposed a flaw in the law, a loophole unscrupulous leaders like Biden could twist to their advantage. The solution to any such flaws when they present themselves is to rewrite the law to close the loopholes.
That brings us to the Bill introduced by Rep Chip Roy (Texas) and Rep Dan Bishop (North Carolina).
The proposed legislation covers a couple of specific changes to existing immigration law.
Page 2 adds a paragraph that grants states explicit legal standing to bring complaints of damages to the federal government — specifically against the Secretary of Homeland Security — resulting from the federal failure to execute laws concerning border policy… it also instructs the courts to grant urgency to the hearing of any such cases. The bar for ‘harm’ that can trigger this action is set at a value of one hundred dollars of injury.
Page 3 focuses on the apprehension and detention of aliens section of law and makes an important change to the language. The phrase ‘or release’ has been removed, and the phrase ‘grant, revocation, or denial’ has been replaced with ‘revocation or denial’.
The AG of any injured state has the standing to bring a case against either the Attorney General or the Secretary of Homeland Security. Like the earlier one, the courts are instructed to prioritize it on their dockets for rapid review.
As you can see, the wide latitude the Biden government has been leaning on as justification for unlimited release is being drastically changed.
Page 4 has similar language granting standing to state officials if Homeland Security fails to discontinue granting visas to ineligible parties.
Page 5 drastically narrows the conditions on which parole may be granted, explicitly forbidding the mass approval of entire swaths of populations, restricting it to a case-by-case basis which can ONLY be granted in circumstances of humanitarian need.
Page 6 specifically grants standing in cases where the federal detention requirements are ignored by federal officials.
Will it pass?
Getting this passed through the Schumer/McConnell Senate is a longshot, but with Mayorkas facing impeachment, it would look pretty bad if they picked now to refuse this legislation. There is also the threat of a government shut-down and the Ukraine/Israel/Taiwan aid that could be used as leverage points to get it passed.
Since this would give states REAL tools in their toolbelt to stop Federal abuses, it might even satisfy the border hawks who demanded some kind of concession on the border.
And if it gets blocked?
Dems face a real downside if they decide to block this bill.
With the first ‘bipartisan’ Ukraine bill stuffed full of poison pills falling flat, Dems have been trying to blame the border crisis on the GOP ‘failure to act’.
If these same Dems refuse something as clear and simple as this little six-page bill, the blame for failing is squarely back in their court.
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