Immigration advocates say they’ve been trying to warn congressional Democrats about the potential damage the Laken Riley Act could cause. But after a tough election cycle, they’re not convinced that lawmakers care.
The bill, which passed the House and is moving forward in the Senate, has received the most attention for its mandatory detention of immigrants arrested or charged with certain crimes. Less noticed — and equally concerning, according to lawyers and advocates — are the provisions granting more power to state attorneys general.
Advocates have been calling frequently and trying to explain the broader implications to little avail, one lawyer at an immigration nonprofit said.
“We are hearing a lot of senators aren’t really interested in the details and are sort of going on pure political instincts,” said the lawyer, who requested anonymity to speak about conversations with congressional offices. “We’re trying to raise as many alarm bells as possible about, hey, maybe it’s not a good idea to give [Texas Attorney General] Ken Paxton the authority to ask [Judge] Reed O’Connor to ban all visas from China.”
“It’s only an eight-page bill, and I wish a number of these senators would sit down and take the time to read it,” the lawyer continued.
The bill’s attorney general provisions could empower them to shape immigration policy through the courts. It would permit state attorneys general to sue the federal government over issuing visas to certain countries. It would also allow AGs to sue over the decision to release undocumented individuals in federal custody. It would also allow them to bring cases if they believe the federal government is failing to enforce immigration laws more generally.
“The bill is quite a bit broader than people think,” Kerri Talbot, executive director of Immigration Hub and former chief counsel on the Hill, said. “This bill goes way further to give a lot of power for state attorney generals to go after individual immigrants.”
The bill’s backers have framed the bill as common sense. They argue it would lead to the detention and deportation of people like the man who killed nursing student Laken Riley.
“Either they’re for deporting criminals here illegally or they’re not. It’s not a complicated bill,” Rep. James Comer told NOTUS.
Democratic Rep. Veronica Escobar, who opposed the bill, said this messaging is intentional.
“This bill is about far more than what Republicans are saying it’s about, and they do a very good job of framing their bills a certain way,” Escobar said.
She said the bill would also create a tool for attorneys general like Texas’ to continue to use the courts to shape immigration enforcement.
“It’s shocking to me,” she continued. “Basically, it’s members of Congress saying we’re OK with states determining the future of immigration law.”
Texas Republican Rep. Chip Roy said that after a Biden administration that frustrated conservatives with their approach to the border, states need more power to fight back.
“That’s the thing that has the most force, so of course Democrats would want to take that out,” Roy said of potentially amending the provisions related to state attorneys general. “The bill would lose 90% of its luster if that’s taken out.”
While advocates say Democrats initially may not have realized how expansive the bill would be, many don’t have that excuse anymore. They still worry the bill’s impact is getting lost in the shuffle as the party seeks to prove it’s committed to addressing immigration.
“They are definitely wanting to show the public that they’re listening and paying attention to the fact that Trump won,” she said. “[The public’s] certainly not saying they want bills that aren’t well-thought-out. The public’s saying they want it to be dealt with. And so I think it’s too bad that we’re kind of rushing to pass something that I don’t think really reflects what people want.”
Many of the legal experts NOTUS spoke to were skeptical that parts of the bill would stand up in court, but they predicted it could take years of chaos and litigation to sort out.
Ultimately, the Supreme Court would need to weigh in, experts said. And setting up a path for these types of lawsuits could be part of the point.
David Bier, the director of immigration studies at the Cato Institute, said lawmakers had thrown in “this other wish list of having state’s attorney generals be able to sue the federal government over all manner of immigration policies that they disagree with or want to see enforced differently.”
“This is really trying to get at decisions by the Supreme Court and other courts that limited standing of states to sue over enforcement priorities, over release decisions, over parole,” he said.
It’s unclear if conservative attorneys general would make use of their new powers under Donald Trump. My Khanh Ngo, staff attorney with the ACLU Immigrants’ Rights Project, said they’re clearly planning for the future.
“This will also be a huge boon for Republican-led states because this basically is an effort to set things up so that they can challenge any sort of future policies or actions by administrations that they disagree with,” she said. “It’s so blatant.”
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Casey Murray is a NOTUS reporter and an Allbritton Journalism Institute fellow.