A new immigration law named after Laken Riley gives states unprecedented veto power

Who Runs the US Immigration System?

If the Senate passes The Laken Riley Act this weekthe answer may not be Congress or the president. The bill, which has already passed the House, would give attorney generals, like Ken Paxton of Texas, a veto over much of federal immigration policy.

Under a provision of the bill that has received little attention, federal courts in places like Texas and Louisiana could hear lawsuits seeking to impose sweeping bans on all visas from countries like India and China. Government officials could also request court orders forcing the government to deport a specific person without a sign-off from an Immigration and Customs Enforcement agency.

Currently, immigration enforcement is administered at the federal level. Giving states veto power over thousands of decisions made every day by federal law enforcement and leaders would complicate immigration issues in all societies and threaten to set off international incidents that could harm American interests around the globe.

The bill is named after Laken Riley, a nursing student who was murdered in February 2024 by Jose Ibarra, a migrant from Venezuela who crossed the border in September 2022. Seizing Ibarra’s atypical immigration record (crimes committed in multiple states while evading ICE arrest ) to paint all migrants as criminals and the Biden administration as responsible, the GOP introduced the Laken Riley Act soon after.

But the bill’s provisions affect all migrants, regardless of criminal background. This law would create an entirely new ground for “mandatory detention” for some undocumented immigrants arrested for any theft crime — without waiting to see if they are convicted or acquitted of the crime. The truth is that migrants arrested for crimes are already subject to detention, and there is little evidence that this law would have protected Riley, as ICE had made an earlier effort to detain Ibarra.

What’s more, the bill’s supporters won’t tell you that the law’s biggest change is its second part, which goes far beyond the circumstances involving Ibarra — well, far beyond the traditional separation of powers.

The Supreme Court has consistently held that the federal government has the final say on immigration policy, which implicates foreign relations as well as complicated federal laws. But the Laken Riley Act creates five areas where attorneys general are allowed to go before a federal judge and seek court orders compelling the executive branch to take certain enforcement actions. At one end of the spectrum, the bill could give state attorneys general the power to overturn the decisions made by individual immigration officers every day about whether someone taken into custody should be released from detention, granted humanitarian parole or placed on a deportation flight.

At the other end of the spectrum, the bill would allow attorneys general to force a secretary of state to invoke a Cold War-era law that authorizes the U.S. government to issue sweeping visa bans to countries that do not accept deportations of their own. citizens, though the Secretary had chosen not to invoke this authority.

The threat of legally imposed visa bans is very real. The bill authorizes state attorneys general to sue “alleging a violation of the requirement to cease granting visas” to recalcitrant countries and seek “appropriate injunctions” from any federal judge.

Both China and India, to give two particularly relevant examples, are “recalcitrant” countries that historically have not cooperated fully with the United States on deportations (other recalcitrant countries include Venezuela, Cuba, Ethiopia, Eritrea, Pakistan, Russia, and Somalia) . Still, in fiscal year 2023, over 1.8 million nonimmigrant and immigrant visas were issued to citizens of India and China. While the majority were short-term visas for tourism or business visits, hundreds of thousands went to international students, guest workers or people who received immigrant visas through a close relative or a job offer from a US company.

Because the United States is so intertwined with these countries, administrations of both parties have been reluctant to threaten blanket visa bans as punishment for not accepting deportees. But should the Laken Riley Act become law, that decision may no longer be in the hands of our nation’s top diplomats and law enforcement officials; it could be in the hands of a single federal district court judge in Texas or Louisiana.

How could it look in practice? Imagine a person from China living in Texas on an H-1B visa who commits an offense that leads to a deportation order. If China does not accept the deportation, Ken Paxton can go to court and try to force the federal government to ban all visas from China (or maybe just all H-1B visas) without having to worry about taking the blame for the economic or diplomatic fallout. to the United States.

The Laken Riley Act would completely change the longstanding balance of power between the states and the federal government over immigration enforcement. Instead of federal supremacy, states could have the power to second-guess decisions made at all levels of the federal government, potentially overruling the president himself.

Not only does the law require federal judges to prioritize these lawsuits above anything else on their (often crowded) dockets, it also instructs judges to ignore traditional legal principles about who is authorized to file a lawsuit. A state would be allowed to sue the federal government for immigration policy or action, even with minimal evidence that the action or policy harmed the state at all.

Giving an attorney general veto power over everything from visa bans to individual release decisions made by ICE and Customs and Border Protection officers threatens to make the entire immigration system even more chaotic than it already is. What happened to Laken Riley was a terrible tragedy and the perpetrator has been sentenced to life in prison for his heinous actions. But just as the bad actions of Willie Horton decades ago were no justification for leaving a system of mass incarceration, the heinous actions of Jose Ibarra should not be an excuse for turning our system of constitutional governance on its head and empowering individual state and federal judges to run immigration law.