Senate immigration bill aims to overturn Supreme Court precedent in a sea change for legal system, experts say

CNN

By Tierney Sneed, CNN

(CNN) — Anti-immigrant state officials and federal judges would have new power to dictate immigration enforcement — including whether to detain individual migrants — under a GOP bill that has passed the House and is moving forward in the Senate with bipartisan support.

The Laken Riley Act aims to overturn Supreme Court precedent and give states such as Texas the ability to bring the types of immigration lawsuits against the federal government that have been rejected by the courts, including conservative judges, legal experts say.

But it would go further, also authorizing state attorneys general to sue to overturn the decisions to release individual immigrants — and even to obtain wide-reaching sanctions on a foreign country for refusing to accept a national eligible for removal.

With Democrats eager to show that they were pivoting on an issue that cost them in the 2024 election, the bill has passed the House and easily cleared its first procedural hurdle on the Senate floor, with just nine senators voting against that step Thursday. But giving states new authorities to sue is emerging as a flashpoint for some Democrats, who want changes before a final vote.

“I don’t think we want the entire immigration system being litigated in district courts all across the country,” Democratic Sen. Chris Murphy of Connecticut told reporters last week. Republicans will likely need the votes of seven Democrats for final approval; 33 members of the Democratic caucus voted in favor of advancing it to the next procedural step.

The bill would give state attorneys general multiple ways to intervene in how the federal government is carrying out immigration law.

States would be able to sue when they believe the Department of Homeland Security was not enforcing the full scope of bill’s mandates that certain immigrants be detained.

They could also bring federal lawsuits challenging the decisions of DHS or immigration judges to release individual immigrants picked up for alleged crimes in their states.

Notably, the new legal powers would only flow one way. States could sue the federal government for deciding to release an undocumented migrant in custody, but it does not authorize state lawsuits for when a person is allegedly being unlawfully detained.

And attorneys general also could seek federal court orders forcing the US State Department to stop issuing visas to a country that refused to accept nationals that were eligible for deportation.

“It could allow a single district court judge to set off a massive international incident with potentially sweeping ramification for the US economy and for immigration writ large,” said Aaron Reichlin-Melnick, a senior fellow at the American Immigration Council, on a recent call with reporters. “There is no reason why Congress should be authorizing state attorneys general to essentially be the people to decide who we sanction as a nation.”

Defenders of the measure say the provisions are necessary after President Joe Biden and previous administrations refused to use all the tools given to the executive branch by Congress to crack down on crimes committed by migrants.

The legislation is named after Laken Riley, a college student who was raped and killed by an undocumented immigrant who had been previously arrested and released multiple times. Condemnation of her murder — and the Biden immigration policies Republicans claimed caused it — was prominent in Donald Trump’s presidential campaign and those of down-ballot Republicans, too.

The attorneys general provisions are the parts of the bill that have “the most force,” said Rep. Chip Roy, a Texas Republican championing the bill. “The bill would lose 90 percent of its luster if that was taken out.”

Giving states ‘some way to fight back’

The court provisions have not gotten much attention compared with the parts of the bill that would mandate the detention of migrants charged with certain crimes.

Among the new offenses that would make an immigrant eligible for mandatory detention under the bill are nonviolent crimes such as shoplifting and theft. Critics say those mandates will divert resources from arresting and detaining the violent criminals who are in the United States illegally.

With the attorneys general provisions, the bill’s architects sought to pair those requirements with new mechanisms that “give the states some way to fight back or challenge a president who is choosing not to enforce the law,” said Jessica Vaughan, director of policy studies for Center for Immigration Studies, which favors stricter immigration policies.

“The states tried numerous types of lawsuits to get the courts to force the Biden administration to live up to its responsibilities to enforce law, and they didn’t have a great deal of success,” she said.

In 2023, for instance, the Supreme Court ruled that Texas and Louisiana did not have standing to challenge the Biden administration’s changes to government deportation priorities. The Biden policy favored deporting immigrants who were national security threats or violent criminals over those accused of less serious offenses.

The new bill would seek to overturn that precedent by giving states standing to sue over such shifts in Homeland Security policy. They’d also be allowed to challenge in federal court the decisions of immigration judges, who are under the purview of the US attorney general and Justice Department, to release individual immigrants from detention.

But the stakes are especially high for the provisions authorizing state lawsuits to seeking court-ordered visa bans against so-called a “recalcitrant country” that won’t accept an immigrant eligible for deportation in the state. The US is unable to return some nationalities because of frosty relations with certain countries, such as Venezuela.

Such a provision would allow Texas Attorney General Ken Paxton, for instance, to seek a ban on all visas for skilled workers from China or an end of all business tourism from India, because those countries refuse repatriation of their citizens, according to Reichlin-Melnick.

If the bill ultimately becomes law, that provision, and possibly others, will likely be challenged in court.

Acknowledging the “legitimate concerns” about the bill’s visa sanctions section, Vaughan said that, at the very least, the court fights could “get some sort of clarification on how the federal government can be nudged into doing its job more effectively.”

Murphy, who did not cast a vote when the bill was up for a procedural vote on Thursday, said the attorneys general provisions would “make the immigration system much, much, much more complicated and Byzantine and confusing.”

“The underlying bill looks like a not well-constructed piece of legislation, but we could potentially make it better,” he said.

CNN’s Ted Barrett, Sarah Ferris and Priscilla Alvarez contributed to this report.

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