Texas continues its long time reputation as the federal government’s biggest judicial opponent as Attorney General Ken Paxton sues the Biden administration, again, over changes to asylum and parole procedures at the border. Since the Biden administration won the 2020 Presidential election Texas Attorney General (AG) Ken Paxton has sued the administration a total of 27 times, with 11 of those lawsuits over immigration policy. Texas has long been the federal government’s most staltward opponent in the courtroom. Under the Obama administration Texas sued the federal government at least 48 times with Gov. Greg Abbott as AG and later Ken Paxton.
The spat of lawsuits highlight Texas’s growing challenge to the federal government’s sole authority over immigration enforcement. AG Paxton’s most recent legal challenge comes in the same month as two other major border policies, Title 42 and the Migrant Protection Protocol (MPP), also face off in the courtroom.
Last week AG Paxton sued the Biden administration over the removal of Title 42. Title 42, a Trump-era pandemic measure, has been used 1.7 million times to expel migrants from the US. The Biden administration decided to end the measure earlier this month due to the increased availability of vaccines and the dropping number COVID-19 cases. The measure was set to be removed on May 23rd, however, a federal judge in Louisiana has stated that he intends to block the lift before its expiration.
Critics of the policy cite its blanket removal of migrants regardless of their claim to asylum as well as the dangerous circumstances it forces migrants into. According to Human Rights First, a non-profit based in New York, as of March 15 there have been aproximately 10,000 cases of kidnapping, torture, rape and other violent attacks on people expelled to Mexico under the health provision.
Despite this, there has been bipartisan worry over the Department of Homeland Security’s capacity to handle the expected rise in migration after Title 42’s expiration. Daily border crossings are expected to increase from 6,000 a day to 18,000. This comes as the agency is already experiencing significant strains on its resources.
To ease the lift of the Title 42 DHS announced a 6 pillar plan that covers in more detail how the agency intends to tackle increased migration. The plan lays out a multi-part initiative that focuses on surging resources to the border, cracking down on illegal crossings and greatly expanding its processing and detention capacities. Part of DHS’s policy changes include adjustments made to asylum regulation which prompted Texas’s most recent lawsuit.
In the same month major hearings were heard by the Supreme Court of the United States (SCOTUS) over Biden’s removal of MPP or the “Remain in Mexico” policy. Another Trump-era immigration policy, Biden attempted to end MPP at the end of last year, but was forced to restart it by a federal judge in Texas.
Arguments for the retention of MPP claim that the protocol is the only assurance that the federal government is able to comply with federal law and detain all illegal entries. Opponents argue that the court implementation of the policy forces the Biden administration to alter its forgein policy, a power explicitly given to the federal branch. By forcing the administration to reenact MPP they must reestablish a deal with Mexico, thereby putting them at the mercy of our southern neighbor.
The real takeaway from the hearings was the focus on who has authority on the implementation of immigration policy. Texas Attorney General Paxton has been using this case as a focal point for his fight to allow Texas to enact its own immigration policy. States are currently restricted by the precedent set by Arizona v. United States that gives all authority over immigration law to the federal government.
Texas continues to be the federal government’s major judicial challenger and all factors indicate that the fight is only ramping up. The Texas AG’s office has made it clear that they intend to make immigration policy a central component in its subsequent judicial bouts, with the goal of giving Texas the right to enforce its own border policies.
What would happen if the AG’s office were to succeed? If it’s anything like Operation Lone Star one could expect foggy metrics, repeat checks and an ever increasing price tag. For more information on the results of Governor Abbott’s Operation Lone Star and other Texas border missions check out the Texas Tribune’s joint investigation with ProPublica and The Marshall Project.