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AGs seek reconsideration of ruling that states don’t have standing to sue over border policy


(The Center Square) – A coalition of 21 Republican attorneys general led by Texas have asked a federal judge who ruled against Texas to reconsider in a lawsuit filed over of Department of Homeland Security Secretary Alejandro Mayorkas’ parole policies.

In March, U.S. District Court Judge Drew Tipton of the Southern District of Texas Victoria Division ruled that a coalition of 21 attorneys general led by Texas didn’t have standing to sue. The parole program they sued over is among over a dozen that House Republicans identified as illegal and used as evidence to support their charge to impeach Mayorkas.

In the lawsuit, 20 states argued Mayorkas created an “illegal visa program” to allow up to 30,000 Cubans, Haitians, Nicaraguans and Venezuelans to enter the U.S. a month who otherwise would not qualify under current law.

Mayorkas has argued he has “discretion” to create this and other policies; House Republicans argued he doesn’t. The coalition also argues he doesn’t and sued, saying that Congress authorized parole only “for foreign aliens who meet very specific standards that have not been met in this instance. Yet, contrary to existing law, the program creates a pathway for program participants to apply from their home country and gain lawful status to enter and stay in the U.S. for up to two years, or even longer.”

Florida also sued over this parole program and others separately; two cases are on appeal before the 11th Circuit Court.

The coalition argues that Tipton “applied the wrong standards in evaluating standing,” “engaged in an impermissible accounting exercise,” and “impermissibly evaluated facts occurring after the complaint to find a lack of standing,” among other arguments.

“Most fundamentally, the Opinion applied the wrong standard to determine whether the Plaintiffs had demonstrated that Texas had standing to challenge the CHNV Program,” their motion states.

Texas has suffered an injury, the coalition argues, because state and county funds are spent on illegal foreign nationals to cover health care, education and other welfare benefits they receive. The judge referred to data provided by the Biden administration claiming less illegal foreign nationals entered Texas, ruling that Texas hadn’t suffered an injury and therefore lacked standing.

The coalition pointed to a Fifth Circuit argument that “rejected the relevance of these overall numbers: ‘[F]or purposes of standing, the inquiry is whether the [challenged agency action] caused Texas to have to incur additional financial, law enforcement, and welfare costs, not whether there were generally more enforcement actions year-over-year in the midst of a historic immigration crisis.’”

Attorneys general joining Texas in the coalition represent Alabama, Alaska, Arkansas, Florida, Idaho, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Tennessee, Utah, West Virginia, and Wyoming.

The Biden administration has argued in the multiple lawsuits filed against it that the states suing don’t have standing. Last July, the U.S. Supreme Court ruled that Texas and Louisiana didn’t have standing to challenge another Mayorkas policy that effectively ended most deportations of illegal foreign nationals.

In response, Republican U.S. Reps. Chip Roy of Texas and Dan Bishop of North Carolina filed a bill to give state attorneys general standing to sue the secretary of Homeland Security when the federal government refuses to enforce federal immigration law.

Their bill was 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 also led a coalition of 26 state attorneys general calling on Congress to pass it.