Congress Considers Putting Ken Paxton in Charge of Choosing Who to Deport

For years, Ken Paxton, Texas’s right-wing attorney general, has been trying to convince courts that he deserves a bigger say in federal immigration policy. Now some Democrats are lining up to give Paxton — and every other state attorney general — a veto over who gets detained and released by U.S. Immigration and Customs Enforcement and the authority to block people from certain countries from getting visas.

Immigration advocates warn against these under-scrutinized provisions in the Laken Riley Act, which passed the House of Representatives last week with support from dozens of Democrats and advanced to debate in the Senate on a bipartisan vote on Monday evening. Manipulatively named for a murdered nursing student, the bill stands to be Congress’s first contribution to the incoming Trump administration’s deportation campaign.

Immigration enforcement has always been the purview of the federal government — not the states. But as passed by the House, the bill authorizes every state attorney general to sue the secretary of homeland security, the U.S. attorney general, and the secretary of state over immigration decisions big and small. These provisions have gotten far less attention than the bill’s proposal to mandate detention for unauthorized immigrants arrested for shoplifting and theft.

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So far, three Democrats have signed on as co-sponsors to the bill: Sens. Ruben Gallego of Arizona and John Fetterman of Pennsylvania, plus Rep. Henry Cuellar of Texas. None of these lawmakers responded to The Intercept’s questions about why state attorneys general should have unprecedented sway over immigration matters.

On Monday, 10 Democrats voted against advancing the bill to floor debate, including Sen. Jeff Merkley of Oregon, whose spokesperson said that the provisions that would empower state attorneys general were alarming.

“Senator Merkley continues to have deep concerns about the Laken Riley Act — including the part of the bill dealing with state attorneys general,” a spokesperson told The Intercept. “He is working with his colleagues to explore options to strike these harmful provisions if debate is allowed on amendments to the bill.”

“It’s such an overreach,” Juliana Macedo do Nascimento, deputy director of federal advocacy for United We Dream Action, told The Intercept. “We’re very concerned about those provisions.”

Macedo do Nascimento pointed to Paxton’s track record, along with a coalition GOP attorneys general, of repeatedly suing the Biden administration over immigration policy — to try to kill the Deferred Action for Childhood Arrivals program, to keep the “Remain in Mexico” policy in place, and to block a program that would allow noncitizens with citizen spouses to apply for a green card from within the country, to name a few.

In each of these cases, courts had to determine whether Texas had standing to bring a legal challenge in the first place. In 2023, the Supreme Court ruled decisively against Paxton’s quest to dictate priorities around immigration arrests and deportations.

“The states’ novel standing argument, if accepted, would entail expansive judicial direction of the [Department of Homeland Security’s] arrest policies,” wrote Justice Brett Kavanaugh.

Proponents of the Laken Riley Act hope to overturn that decision, as Republicans explained last year. The bill would allow a state attorney general to sue to force federal authorities to detain or deport a given individual. Most expansively, it would let state attorneys general sue to block the State Department from issuing visas to nationals of “recalcitrant” countries that won’t accept deportees.

“If the Laken Riley Act passes, Ken Paxton or [Missouri attorney general] Andrew Bailey could go to a federal judge to get a court order requiring the State Department to stop issuing all visas to Indian and Chinese nationals,” summarized Aaron Reichlin-Melnick, senior fellow at the American Immigration Council.

Some legal experts are doubtful Congress can chip away at the Supreme Court’s precedent so easily here, particularly since the court has repeatedly held that immigration is primarily a federal, not a state, issue. Paxton has been attacking that constitutional principle too, in cases designed to test the boundaries of state power when it comes to the border.

On Tuesday, Senator Dick Durbin, D-Ill., warned that the bill’s provisions about state attorneys general were unconstitutional.

“These standing provisions would also undermine the supremacy of the federal government over immigration and border security, established by our Constitution,” Durbin said on the Senate floor. Last year, Durbin blocked a prior version of the Laken Riley Act on these grounds.

The state attorney general provisions “have nothing to do with the tragic murder of this young woman,” Durbin said yesterday. He then voted to advance the bill to debate, along with most of the Democratic caucus.