Additionally, Republican-controlled states have obtained orders requiring the Biden administration to uphold the emergency border order known as Title 42, which permits the swift expulsion of migrants, and barring it from upholding a provision that exempts unaccompanied migrant children.
The Supreme Court turned down the Biden administration’s request to reinstate curbs on immigration arrests on Thursday, choosing instead to schedule oral arguments on the legal challenges to the policy for its session in December. This was the administration’s second judicial loss.
State lawsuits challenging the Biden administration’s efforts to modify and expedite the asylum process at the U.S.-Mexico border, as well as its decision to halt most border wall construction, are still unresolved.
Federal judges in Florida and Texas have also not yet made decisions regarding requests from states to stop the administration from running a program that permits at-risk Central American children to enter the country if they have family members already living here and to halt some releases of migrants detained at the border.
According to Cornell University professor and expert on U.S. immigration law Steve Yale-Loehr, the courts, not Congress or the executive branch, now control most federal immigration policy.
The conservative states have done a good job of judge-shopping to find judges who are likely to agree with these conservative states, according to Yale-Loehr. “I think every major policy initiative by Biden that they plan to roll out in the next year is going to be challenged in the courts,” Yale-Loehr said.
Republican state officials have “immensely obstructed” the Biden administration, according to Abdullah Hasan, a White House spokeswoman.
“We’ve seen it time and again: Republican elected officials attempt to block nearly every step we take to rebuild the immigration system the prior Administration gutted, and then try to blame us for the chaos and confusion their actions cause,” Hasan told CBS News.
Hasan countered that the government is “making considerable progress protecting the border and constructing a fair, orderly, and humanitarian immigration processing system” and that this progress is still being made.
Arizona Attorney General Mark Brnovich said in an interview that the legal actions brought by his office and other state authorities serve as a “check” on federal immigration rules that, in his opinion, have fostered illegal immigration and jeopardized public safety.
“I would prefer not to be having to sue the president of the United States, but when any president acts in a lawless manner, it is up to us to hold him accountable,” Brnovich, a Republican, told CBS News. “And the reality is that the federal government is at the height of its power when it comes to issues related to national security and border security, but the Biden administration is systematically failing to do its job.”
“Litigation that tries to interfere with our power to safeguard our borders, enforce our laws, and stay loyal to our principles is futile,” U.S. Department of Homeland Security (DHS) spokesman Luis Miranda said.
“We will continue to pursue every avenue within our authority to fulfill our national security and law enforcement mission and will defend our practices and policies in court, abiding by applicable court orders and the rule of law as we do so,” Miranda told CBS News.
The federal courts where many of the lawsuits attempting to thwart Trump’s immigration policy were filed, including district courts in northern California, Hawaii, and New York, were almost certainly to have judges who had been selected by Democrats hearing the cases. This tactic is known in the legal community as “forum-hopping.”
However, according to legal experts, Republican-led states—particularly Texas—have transformed “forum-shopping” into “judge-shopping” by bringing lawsuits in federal courthouse divisions, frequently in small cities, where all or a disproportionately large number of cases are assigned to judges who were appointed by Mr. Trump.
The plan worked well. Cases involving Title 42, the “Remain in Mexico” policy, restrictions on ICE arrests, Mr. Biden’s revamping of the asylum system, and the release of migrants along the southern border under parole authority are being supervised by judges who were selected by Trump.
Texas Attorney General Ken Paxton responded to the claims of “judge-shopping” in a statement, saying it’s incorrect to attribute “Texas’s success to Trump judges rather than this Administration’s failings.”
“The criticism that we’re pulling the judiciary into mere policy disputes or that we’re involved in forum shopping is inaccurate,” Paxton said. “First, we sue Biden when he breaks the law. The law requires him to protect and defend the border. It’s his — not our — policy decision to abandon and flout those duties.”
Arizona’s attorney general, Brnovich, criticized Democratic leaders for being disingenuous in their criticism of the Republican lawsuits brought against the Biden administration, pointing to the numerous legal challenges Democratic-controlled states brought against the Trump administration.
“No one, whether you’re a Republican or Democrat, should have an issue with the states pushing back against the overreach of the federal government,” said Brnovich, who is seeking to unseat Democratic Arizona Sen. Mark Kelly this fall.
Prior to her departure in May, Angela Kelley served as Senior Counselor on Immigration for Alejandro Mayorkas, Secretary of Homeland Security, and claimed that the litigation campaign by Republican officials frequently affected the administration’s decision-making process, including by delaying some priorities.
“It was pretty clear from day one, before the inauguration break was over, that the opponents of the administration wanted to disrupt and derail and deter us from our agenda,” Kelley said. “And given the appointment of judges from the previous administration and their careful selection of where to file their lawsuits, they absolutely had early successes.”
Although the administration has suffered significant legal setbacks, Kelley noted that when it has asked the Supreme Court to intervene, it has had some success. She pointed out that the high court rejected Republican-led states’ arguments for maintaining the Remain in Mexico policy as well as their attempt to reinstate onerous Trump-era green card rules.
Yale-Loehr stated that unless Congress limits judges’ ability to thwart national initiatives or passes a comprehensive reform of the U.S. immigration system—a prospect that has proven elusive for decades amid intense partisanship—lawsuits will continue to shape federal immigration policy, frustrating Mr. Biden and future presidents.
However, Yale-Loehr continued, “that’s not how our government is meant to function,” adding that the federal court system’s responsibility should be restricted to evaluating whether the president and Congress’s acts are legal and constitutional.
“From the American public’s perspective, when people disagree with a policy, theoretically they can vote that person out of office, whether it’s a member of Congress or the president,” Yale-Loehr said. “But when the judges are making a policy decision that the public disagrees with, they cannot vote that judge out of office.”