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

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 week, the answer may not be Congress or the president. The bill, which has already passed the House of Representatives, would give state attorneys general, like Ken Paxton in Texas, veto power 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. State officials could also seek court orders forcing the government to deport a specific person without authorization from an Immigration and Customs Enforcement official.

The danger of court-imposed visa bans is very real.

Currently, immigration enforcement is administered at the federal level. Giving states veto power over thousands of decisions made every day by federal law enforcement officials and leaders will complicate immigration issues in all communities and threaten to trigger international incidents that could harm U.S. 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. Exploiting Ibarra’s atypical immigration history (committing crimes in multiple states while evading ICE arrest) to paint all migrants as criminals and the Biden administration as responsible, the GOP soon introduced the Laken Riley Act.

However, the provisions of the bill affect all migrants, regardless of their criminal background. This bill would create an entirely new reason for “mandatory detention” for some undocumented immigrants who are arrested on theft charges — without waiting to see whether they are convicted or acquitted of the crime. The truth is that migrants are arrested for crimes already detained, and there is little evidence that this law would have protected Riley as ICE had had previously attempted to arrest Ibarra.

Furthermore, the bill’s supporters won’t tell you that the biggest change to the law is its second part, which goes far beyond the circumstances in Ibarra – indeed, far beyond the traditional separation of powers.

The Supreme Court has consistently held that the federal government has the final say on immigration policy, affecting both foreign relations and complicated federal laws. However, the Laken Riley Act creates five areas in which attorneys general would have the authority to approach 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 authority to overturn day-to-day decisions made by individual immigration officials about whether a person in immigration detention should be released from custody, paroled on humanitarian grounds, or placed on deportation flight.

The administrations of both parties were unwilling to threaten a blanket visa ban as punishment for not accepting deportees.

At the other end of the spectrum, the bill would allow state attorneys general to force a secretary of state to invoke a Cold War-era law that authorizes the U.S. government to impose sweeping visa bans on countries that deport their own Citizens do not accept citizens, even if The Secretary had decided not to invoke this authority.

The danger of court-imposed visa bans is very real. The bill authorizes state attorneys general to sue recalcitrant countries “for a violation of the obligation to stop issuing visas” and to seek “appropriate injunctive relief” from any federal judge.

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

Because the United States is so intertwined with these countries, governments of both parties have been unwilling to threaten blanket visa bans as punishment for not accepting deportees. However, if the Laken-Riley Act goes into effect, 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 judge in Texas or Louisiana.

What might that look like in practice? Imagine a person from China living in Texas on an H-1B visa who commits a crime that results in a deportation order. If China doesn’t accept the deportation, Ken Paxton could go to court and force the federal government to ban all visas from China (or perhaps just all H-1B visas) without fear of economic or diplomatic blame consequences to be borne in the United States.

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

The law not only requires federal judges to give these lawsuits priority over anything else in their (often crowded) dockets, but it also instructs judges to ignore traditional legal principles about who has standing to file a lawsuit. A state would be entitled to sue the federal government over immigration policies or actions, even if there is minimal evidence that the action or policy harms the state at all.

Giving an attorney general veto power over everything from visa bans to individual release decisions by ICE and Customs and Border Protection officials risks making the entire immigration system even more chaotic than it already is. What happened to Laken Riley was a terrible tragedy, and the perpetrator was sentenced to life in prison for his heinous actions. But just as Willie Horton’s bad actions decades ago were no justification for reinforcing a system of mass incarceration, Jose Ibarra’s heinous actions should be no excuse for upending our system of constitutional governance and allowing individual states and federal judges to do so empower Operate immigration law.

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