The Laken Riley Act Would Give States Sweeping Power Over Immigration Policy
Posted by Aaron Reichlin-Melnick | Jan 8, 2025 | Enforcement, Interior Enforcement, Legislation, Reform, State and Local
Who runs the U.S. immigration system?
If the Senate passes the Laken Riley Act this week, the answer might not be Congress or the president. The bill, already passed in the House, would hand state attorneys general, like Ken Paxton in Texas, veto power over large swaths of federal immigration policy.
Under a provision of the bill that has gotten little attention, federal courts in places like Texas and Louisiana could hear lawsuits seeking to impose sweeping bans on all visas from countries such as India and China. State officials could also seek court orders forcing the government to deport a specific individual without the sign-off of an Immigration and Customs Enforcement officer.
The threat of judicially imposed visa bans is very real.
Currently, immigration authority is managed at the federal level. Giving states a veto power over thousands of decisions made every day by federal law enforcement officers and leaders will complicate immigration issues in every community and threaten to set off international incidents which could hurt 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. Seizing on Ibarra’s atypical immigration record (crimes committed across 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 afterward.
But the bill’s provisions impact all migrants, regardless of criminal background. This law would create a brand new ground of “mandatory detention” for some undocumented immigrants arrested for any theft offense — 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 a previous effort to detain Ibarra.
Trump, GOP allies falsely blame attacks on immigration failures 05:04
Furthermore, 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 — indeed, far beyond the traditional separation of powers.
The Supreme Court has consistently ruled 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 state attorneys general would be authorized to go in front of a federal judge and seek court orders forcing the executive branch to carry out certain enforcement actions. On one end of the spectrum, the bill could give state attorneys general power to overturn garden-variety decisions made by individual immigration officers every day as to whether a person taken into immigration custody should be released from detention, granted humanitarian parole or put on a deportation flight.
Administrations of both parties have been unwilling to threaten blanket visa bans as a punishment for not accepting deportees.
On the other end of the spectrum, the law 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 issue sweeping visa bans to countries that do not accept the deportation of their own nationals, even if the secretary had chosen not to invoke that authority.
The threat of judicially imposed visa bans is very real. The bill authorizes state attorneys general to sue “alleging a violation of the requirement to discontinue granting visas” to recalcitrant countries and seek “appropriate injunctive relief” from any federal judge.
Both China and India, to give two particularly relevant examples, are “recalcitrant” countries that have historically not cooperated fully with the United States on deportations (other recalcitrant countries include Venezuela, Cuba, Ethiopia, Eritrea, Pakistan, Russia and Somalia). Yet in fiscal year 2023, over 1.8 million nonimmigrant and immigrant visas were issued to nationals 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 receiving immigrant visas through a close relative or a job offer from a U.S. company.
Because the United States is so intertwined with these countries, administrations of both parties have been unwilling to threaten blanket visa bans as a punishment for not accepting deportees. Yet 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 officers; it could be in the hands of a single federal district court judge in Texas or Louisiana.
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What could this look like 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 could go to court seeking 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 upend the long-standing power balance between the states and the federal government on immigration enforcement. Rather than federal supremacy, states could have the power to second-guess decisions made throughout every level of the federal government and potentially overrule 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 judicial principles about who is authorized to file a lawsuit. A state would be allowed to sue the federal government over immigration policy or action, even with only minimal evidence that the action or policy injured the state at all.
Giving a state 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 acts. But just as Willie Horton’s bad acts decades ago were not a justification for supercharging a system of mass incarceration, the heinous acts of Jose Ibarra should not be an excuse to flip our system of constitutional governance on its head and empower individual states and federal judges to run immigration law.
