Officials in the Republican-controlled states of Arizona, Missouri, and Texas have been filing suits in federal court over the past year to challenge at least a dozen nationwide border or immigration-related policies enacted or supported by the Biden administration. Nearly all of the federal judges hearing the state-led cases were appointed by former President Donald Trump.
Those federal judges have either blocked or set aside major immigration policies, such as a proposed 100-day deportation moratorium and two rules intended to limit immigration arrests. Federal judges also have forced border officials to reinstate a Trump-era policy that requires some migrants to remain in Mexico while awaiting their asylum hearings, and have closed the Deferred Action for Childhood Arrivals (DACA) program to new “Dreamer” applicants.
On July 21, the Supreme Court handed Biden another legal setback on immigration when the Court rejected the administration’s request to allow officials to reinstate restrictions on immigration arrests. Instead, the Court scheduled oral arguments about the policy for its December session.
According to Steve Yale-Loehr, a Cornell University professor who specializes in U.S. immigration law, federal policymaking on immigration is now primarily dictated by federal courts rather than by Congress or the executive branch. Yale-Loehr referred to the strategy of filing lawsuits in federal courts in GOP-led states as “judge-shopping.”
According to White House spokesperson Abdullah Hasan, in spite of the legal challenges, the administration is "making significant progress securing the border and building a fair, orderly, and humane immigration processing system." For his part, Arizona Attorney General Mark Brnovich argued that the various Republican-led lawsuits serve to check federal immigration policies that he believes encourage illegal immigration and undermine public safety.
U.S. Department of Homeland Security (DHS) spokesman Luis Miranda called such litigation counterproductive. In response, Brnovich cited dozens of legal challenges that were filed against the Trump administration by Democratic-controlled states such as California, Hawaii, and New York.
Yale-Loehr expects lawsuits will continue to shape federal immigration policy and hamstring efforts by Mr. Biden and future presidents unless Congress succeeds in reforming the U.S. immigration system. That broad goal has eluded national legislators for decades amid intense and growing partisanship.