Paxton sues feds over ICE pause
Just days after Texas Attorney General Ken Paxton pledged to “fight against the many unconstitutional and illegal actions that the new administration will take,” he announced Friday he had filed a suit challenging President Joe Biden’s temporary pause on deportations for certain noncitizens.
The Department of Homeland Security announced the 100-day moratorium on Wednesday and it took effect Friday. It came after Biden revoked one of Trump’s earliest executive orders making anyone in the country illegally a priority for deportations.
Paxton alleges in the suit, filed in federal district court in Victoria, that Biden’s move violates the U.S. Constitution, federal immigration and administrative law and a contractual agreement between Texas and the federal government.
The case is before U.S. District Judge Drew Tipton, a Trump appointee who took the bench in Corpus Christi last June and previously practiced law in Houston. In a hearing held via Zoom on Friday, Tipton did not immediately rule on Texas’ request for a temporary restraining order. Instead, he said he would take the matter under advisement and vowed to make a decision quickly.
Administration officials did not respond to a request for comment, and a DHS spokesperson declined to comment on pending litigation. But in a memo issued Wednesday, DHS Acting Secretary David Pekoske said the moratorium was implemented as the agency shifts staff and resources at the southwest border, and to protect the health and safety of
DHS personnel amid the pandemic.
“We must ensure that our removal resources are directed to the department’s highest enforcement priorities,” Pekoske added.
The order does not apply to noncitizens who: have engaged in or are suspected of terrorism or espionage or who otherwise pose a national security risk; were not in the U.S. before Nov. 1; or voluntarily signed a waiver to rights to remain in the U.S. as long as they’d been given “a meaningful opportunity to access counsel” beforehand. It also gives the acting director the discretion to allow deportations on a case-bycase basis.
The agreement Paxton refers to is one that the department, while still controlled by the Trump administration, signed preemptively with multiple jurisdictions, including the state of Arizona, that required the agency to give them six months to review and submit comments before moving forward on any changes to immigration policy, as Buzzfeed News first reported. The legal enforceability of those documents, however, has yet to be seen.
Paxton had warned a suit was on the way Thursday night when he sent a letter to Pekoske saying the department’s actions marked a “complete abdication” of its duty to enforce federal immigration law, which he claimed would harm Texas and its citizens.
“Our state defends the largest section of the southern border in the nation. Failure to properly enforce the law will directly and immediately endanger our citizens and law enforcement personnel,” Paxton said in a statement. “DHS itself has previously acknowledged that such a freeze on deportations will cause concrete injuries to Texas. I am confident that these unlawful and perilous actions cannot stand. The rule of law and security of our citizens must prevail.”
Texas Democrats were quick to criticize Paxton for using taxpayer dollars for what they see as political causes.
“It’s Ken Paxton being Ken Paxton and wasting our taxpayer dollars,” Houston Democrat and U.S. Rep. Sylvia Garcia said on a call with reporters Friday, adding that it’s important to note that of Paxton’s numerous lawsuits against the federal government, “very, very few were upheld by the courts.”
The state’s Democratic Party Chair Gilberto Hinojosa said in a statement that the move seemed prompted by “hatred towards migrant families by Republican leadership.”
“Ken Paxton seems to have no problem with grossly wasting taxpayer money to score political points,” Hinojosa said. “This is nothing but a sad attempt to keep Trumpism alive when we have a new leader in the White House and, at last, new hope for millions of Texans who had their rights violated for four years. Paxton is an embarrassment to the office of the state attorney general and to the State of Texas.”
In the virtual hearing Friday, Will Thompson, an attorney for the state, argued that the DHS agreement was valid and precluded it from enacting policy changes before the 180-day feedback period has ended. Thompson also said Texas would suffer irreparable harm from the pause on deportations, such as increased education and health care costs for undocumented immigrants.
Department of Justice attorney Adam Kirschner raised several legal arguments for why the agreement is not enforceable, among them that it violated Article II of the Constitution by giving Texas, at least for 180 days, “veto power over immigration law,” which is within the jurisdiction of the federal government. Kirschner also said the state failed to identify injury that the policy would cause, other than “general budgetary concerns.”