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Trump appointees are helping Texas derail Biden’s immigration agenda

 Migrants arrive in Nuevo Laredo after being returned to Mexico by U.S. Customs and Border Protection in July 2019 under the Migrant Protection Protocols. Texas Attorney General Ken Paxton sued the Biden administration when it halted the Trump-era program and a judge ordered the Biden administration to re-start it.
Miguel Gutierrez Jr.
The Texas Tribune
Migrants arrive in Nuevo Laredo after being returned to Mexico by U.S. Customs and Border Protection in July 2019 under the Migrant Protection Protocols. Texas Attorney General Ken Paxton sued the Biden administration when it halted the Trump-era program and a judge ordered the Biden administration to re-start it.

Attorney General Ken Paxton’s office has sued the Biden administration 20 times in Texas federal courts over everything from mask mandates to immigration policies. Trump-appointed judges have ruled in seven of them, all in favor of Texas.

On President Joe Biden's first day in office, he announced a moratorium placing a hundred-day pause on deportations for some undocumented immigrants.

By the end of that week, Texas Attorney General Ken Paxton filed the first of what would become a string of lawsuits against the Biden administration, claiming the moratorium was illegal.

U.S. District Judge Drew Tipton, a Trump appointee in Corpus Christi, issued an injunction, ruling the Biden moratorium violated federal administrative procedure. The lawsuit was eventually dismissed without the moratorium going into effect.

And on March 4, Paxton got another win when a different Trump appointee in Fort Worth ruled the Biden administration can’t exempt unaccompanied child migrants from being expelled from the country under Title 42, a pandemic health order issued in March 2020 by the Centers for Disease Control and Prevention to rapidly expel migrants at the border without allowing them to apply for asylum.

In the first 14 months of Biden's presidency, no state has done more than Texas to challenge his immigration agenda in court. And most of its cases — and victories — have played out in Texas courts with judges appointed by former President Donald Trump, who appointed 226 federal judges while in office, a number the former president has bragged about.

Paxton’s office has told state lawmakers that it would like to challenge a fundamental tenet of immigration law before the U.S. Supreme Court, which now has a trio of Trump appointees.

Texas has filed 20 lawsuits in Texas-based federal courts, most of them led by Paxton, against the new administration over everything from federal mask mandates to halting the long-disputed Keystone XL pipeline. Trump-appointed judges have heard 16 of the cases and ruled in favor of Texas in seven — the other nine are pending.

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“General Paxton is very proud of this level of accomplishment,” said Alejandro Garcia, Paxton’s spokesperson.

Paxton’s office has also sued the administration in Washington, D.C., federal courts and joined lawsuits led by attorneys general in other states.

The state’s favorite target has been Biden’s immigration policies, which have sparked seven of the 20 lawsuits in Texas courts. Paxton filed six of those lawsuits, while state Land Commissioner George P. Bush — who challenged Paxton in the GOP primary for attorney general and will face him in a May runoff — filed one that claims that the Biden administration illegally halted border wall spending.

So far, Paxton has been successful in stopping or altering Biden’s immigration policies in four of those cases, including one of the most consequential ones: forcing the Biden administration to reverse course and resume the Migrant Protection Protocols, a Trump-era policy also known as “remain in Mexico” that makes asylum-seekers wait in Mexico as their legal cases go through U.S. immigration courts.

In Paxton’s fourth case, Tipton issued an injunction in August halting two memos from the Biden administration directing immigration agents to prioritize arresting immigrants who have felonies, ties to gangs or pose a risk to public safety. Tipton said the memos violated federal law because the federal government has to deport every undocumented immigrant.

“They're finding any little loophole to just make it more difficult for Biden to be able to follow through on his promises that he made during his campaign,” said Marysol Castro, an immigration lawyer with Diocesan Migrant and Refugee Services who provides legal representation to asylum-seekers in El Paso.

Paxton says his office is forcing the Biden administration to comply with the Constitution. He has said Biden’s immigration policies are putting Texans in danger because they lead to drug and human smuggling and are costing taxpayers money to provide social services and public education to migrants.

“We have a continuing fight with the Biden administration with the hope that as time goes on, we will force our president … to do what he's supposed to do under the Constitution,” Paxton said last week during a news conference in Weslaco.

Stephen Vladeck, a law professor at the University of Texas, said through its lawsuits, Texas is undercutting the federal government’s power to set national immigration policies.

Vladeck said Paxton’s office appears to be “judge shopping” to boost its chances of success.

“I think the real sort of negative long-term problem here is not the implications for any particular immigration policy, but rather the notion that immigration policy is going to be set by whichever district judge gets their hands on it first,” he said. “That's especially problematic when the district judge is being hand-picked by the plaintiff.”

Paxton isn’t the first state official to turn to the courts to fight presidential policies.

Then-Texas Attorney General Greg Abbott sued the Obama administration about two dozen times, saying in 2012 his job was simple: "I go the office. I sue the federal government. Then I go home."

During Trump’s four years, California’s attorney general sued his administration 110 times over immigration, environmental policies, consumer rights and other issues. California had an 82% success rate as of Jan. 22, 2021, according to the news organization Cal Matters.

Vladeck said a key difference is that California sued in courts where any number of judges could end up ruling on a case. According to Vladeck’s analysis, Texas lawsuits have been filed mostly in courts where one judge hears more than 75% of the cases, increasing the chances of a Trump appointee taking the case.

Garcia, Paxton’s spokesperson, rejected the idea that his office is judge shopping. He said they are suing “everywhere we have a legal right to sue.”

“The [attorney general’s] office has an extraordinarily high win rate,” Garcia said. “That’s a testament not only to the quality of General Paxton’s legal team and lawsuits, but also the flagrant illegality of this administration; when they’re pressed in court, they lose.”

Conflicting rulings in Title 42 cases

The legal fight over Title 42 is an example of how Texas has used the courts to set a national agenda, Vladeck and immigrant rights advocates said.

The Trump administration began to use Title 42 in March 2020 to expel asylum-seeking migrants as a way to contain the coronavirus. Immigration officials have expelled 1.6 million migrants under the health order, including 16,000 unaccompanied children expelled during the Trump administration before the Biden administration temporarily exempted them.

Paxton’s office filed a lawsuit in April 2021 asking a judge to block the Biden administration from exempting unaccompanied minors, arguing that allowing them to claim asylum and remain in the U.S. puts a financial burden on Texas.

U.S. District Judge Mark Pittman agreed in his March 4 ruling, saying children can still spread “whatever viruses they are carrying” to American citizens and officers who encounter them.

“Win for Texas & children — loss for Biden & cartels!” Paxton cheered on Twitter, adding that exempting unaccompanied minors also encouraged human smuggling.

Pittman’s ruling came hours after a federal appellate court in Washington, D.C., reaffirmed a lower court’s ruling in a separate case that it’s illegal to expel asylum-seeking migrant families to countries where they could be persecuted or tortured.

Immigrant rights advocates cheered the appellate court’s decision because it would result in fewer families being expelled from the U.S. But the dueling rulings created confusion about the program’s future.

The appellate court ruling most likely won’t go into effect until next month, while Pittman’s ruling went into effect on Friday. On Saturday, the CDC’s director announced that the agency had updated its order to permanently terminate the government's ability to expel unaccompanied children using Title 42 because of increased vaccination rates in the U.S. and in the home countries of the migrant children and a decrease in coronavirus cases nationwide.

“Texas officials are creating chaos and uncertainty on the border with their lawsuits,” said Laura Peña, a legal director at the Texas Civil Rights Project. “It's mind-boggling to think that Texas officials would want to put children into harm's way by either expelling them to Mexico or sending them on planes alone to their home countries.”

The rulings renewed national pressure on the Biden administration from lawmakers and immigrant rights advocates to end the use of Title 42, saying the practice has made asylum-seeking migrants suffer unnecessarily after fleeing dangerous situations in their home countries.

But even if Biden were to end Title 42, “someone's going to litigate, and most likely someone from Texas,” said Castro, the immigration lawyer in El Paso.

Paxton’s office wants a U.S. Supreme Court challenge

In addition to trying to reverse Biden’s agenda, Paxton’s office has indicated that it wants to undo a more fundamental part of U.S. law — particularly court rulings that say the federal government has the sole authority over enforcement of immigration laws.

Texas has spent billions of dollars on border security efforts since Barack Obama’s administration, and Gov. Greg Abbott has increased the state’s presence on the border since Biden won the presidency — sending National Guard soldiers and state troopers to the border and using state money and some private donations to build border barriers.

When Arizona passed a state law in 2010 that allowed police officers to arrest people if they couldn’t provide documentation showing legal presence in the country, the Obama administration sued the state, claiming immigration laws could be enforced only by the federal government. In 2012, the U.S. Supreme Court ruled in a 5-3 decision that local police didn’t have the authority to arrest someone based on their immigration status.

During a state Senate committee meeting on border security last week, Texas Assistant Attorney General Brent Webster told the senators that Paxton’s office does not agree with the ruling and would “welcome laws” that would spark a court challenge “because the makeup of the Supreme Court has changed.”

In his lone term, Trump appointed three Supreme Court justices — the most by any president since Ronald Reagan, who appointed four during his two terms.

“We ask for you guys to consider laws that might enable us to go and challenge that [Supreme Court] ruling again,” Webster added.

Copyright 2022 KERA. To see more, visit KERA.

Uriel J. García | The Texas Tribune