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New bill would give states standing to sue federal government

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A new bill has been filed to give state attorneys general greater authority and legal standing to sue the federal government when it fails to enforce federal immigration law established by Congress.

Republican U.S. Reps. Chip Roy of Texas and Dan Bishop of North Carolina introduced the Standing Up to the Executive Branch for Immigration Enforcement Act, or “SUE for Immigration Enforcement Act,” on Wednesday.

The six-page bill is being marked up by the House Judiciary Committee.

It was filed in response to a U.S. Supreme Court ruling last July that held that Texas and Louisiana did not have standing to challenge a policy implemented by Department of Homeland Security Secretary Alejandro Mayorkas, which effectively ended most deportations of illegal foreign nationals.

A federal judge ruled Texas and Louisiana did have standing because the states would incur costs due to the federal government’s refusal to enforce federal immigration law. He also vacated the deportation policy, arguing it was unlawful. Rather than argue the merits of the case, the Supreme Court ruled the states didn’t have standing, or a legal right, to challenge the policy.

The bill of Roy and Bishop bill would give state attorneys general standing to sue the secretary of Homeland Security when the federal government refuses to enforce federal immigration law. It would amend the Immigration and Nationality Act to allow attorneys general to sue when the federal government does not follow existing law and detain and remove illegal foreign nationals in their states. It includes language regarding a state or resident being harmed by federal policies, including defining harm to include financial costs exceeding $100. It also would direct the courts to advance on the docket and expedite the disposition of a civil action.

It takes the opposite approach of a Senate Democrat bill, championed by Sen. James Lankford, R-Okla., which would have stripped states’ ability to sue. The bill, which Speaker of the House Mike Johnson, R-La., said the House would not even consider, would have prevented judges in federal courts in any state from ruling on lawsuits filed by states over Biden administration border policies. The Lankford-Democratic bill instead gave sole judicial authority to the left-leaning U.S. District Court for the District of Columbia, which would have prevented states like Texas, Florida, Louisiana and others from winning their cases. Federal judges in these states all ruled against Mayorkas’ policies in lawsuits over the last three years.

Roy said their bill was important because the Biden administration “has consistently ignored the laws on the books that require operational control of our border in pursuit of an open-borders agenda, creating the invasion we have watched for years at our southern border.”

It was imperative that Congress “reaffirm the states’ constitutional ability to defend their own borders,” he said, by authorizing state attorneys general to challenge federal policies directly.

Bishop said President Joe Biden and Mayorkas, whom he and the Republican House majority voted to impeach, “are pursuing a disastrous open borders policy at any cost, including repeatedly and flagrantly violating federal immigration law,” and “relentless[ly] pursu[ing] lawlessness, chaos, and destruction.”

Congress must support the states, he said, “as they stand in the breach in their defense of our sovereignty.”

Republican Reps. Andy Ogles of Tennessee, Tom Tiffany of Wisconsin, Harriet Hageman of Wyoming, and Josh Brecheen of Oklahoma, signed on as cosponsors.

Their bill is similar to one twice filed by U.S. Rep. Bill Posey, R-Fla., which would grant states the authority to enforce federal immigration law when the federal government refuses to do so. Florida Attorney General Ashley Moody led a coalition of 26 state attorneys general, calling on Congress to pass.

She told members of Congress last month that despite Florida’s and other states’ wins in court against Biden administration policies, “it is becoming clear that the judicial system is not an adequate battlefield to quickly address the urgent crisis Biden has created,” which is why the coalition urged Congress to act.

Despite a federal judge ruling in Moody’s favor last year over Mayorkas’s catch and release and parole policies, none were halted. Instead, Mayorkas expanded and created new parole programs, which the House Homeland Security Committee identified as illegal and included as evidence in its successful effort to impeach Mayorkas this week.

The bill was filed after apprehensions of illegal border crossers skyrocketed under Mayorkas’ watch. In the first quarter of fiscal 2024 apprehensions at the southwest and northern borders were the highest in U.S. history.