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Law & the Courts

Texas AG Ken Paxton on Fighting Biden’s Anti-border Policies

Central American migrants surrender to a U.S. Border Patrol agent south of the U.S.-Mexico border fence in El Paso, Texas, March 6, 2019. (Lucy Nicholson/Reuters)

In this week’s Parsing Immigration Policy podcast, I was joined by Ken Paxton, attorney general of Texas, to talk about what the states can do to fight the Biden administration’s immigration policies. We talked about the two arenas where Texas is at the center of the current immigration emergency: the border and the courtroom.

There’s a limit to what a state can do about illegal infiltration of its border from a foreign country. As Paxton noted, the Supreme Court in U.S. v. Arizona ruled that, as he described it, “even if [illegal immigrants] are violating federal law, and the Biden administration decided not to enforce it, as they’re required to by the Constitution and federal law, there’s supposedly nothing we can do about it — that doesn’t make any sense to me.” “If we can find the right case” to bring before the Supreme Court, he said, “I hope that they’ll look at this and consider the consequences of that decision.”

But alien smugglers, and even regular border-jumpers, are also violating state laws for which they can be arrested and prosecuted. There are two problems here, however. First, as Steve McCraw, director of the Texas Department of Public Safety (the state police) told my colleague Todd Bensman last month, there are real risks in arresting the smugglers guiding rafts full of women and children across the river; as Bensman wrote, “troopers are told to hold back out of wariness that arrest attempts at water’s edge might put women and children at risk in some scenarios, given their proximity to sociopathic cartel operatives.” As McCraw told Bensman, “They’ll throw them in the water. And if that happens, we’re going to save them first. That’s going to be the first thing we do, and they know that and leverage that.” But McCraw didn’t rule it out: “If we are able to get our hands on them, we will . . . when it’s tactically sound.”

But then the second problem presents itself: how to prosecute? AG Paxton told me that his hands are tied in that regard because, “district attorneys have complete authority over criminal law, other than election fraud.” “So I don’t have jurisdiction unless they refer it to me,” he added. Paxton noted that some district attorneys are indeed prosecuting, while others are not. Prosecuting human-trafficking cases in particular could be especially useful, but Paxton said that in many counties the DAs don’t have the resources or expertise to prosecute numerous and complicated trafficking cases. (Trafficking is different from smuggling in that it entails coercion for purposes of sexual or labor exploitation, as opposed to just paying a smuggler for his services.)

This is especially unfortunate because Paxton set up a unit in his office specifically targeting human trafficking. Paxton said he supported a bill in the state legislature to “let the DAs have first right of refusal on all human trafficking cases,” but that after 60 days (or if the case crossed county lines) the AG’s office could take it up. “If they don’t want to do it, we’ll do it.” Unfortunately, the DAs “fought it tooth and nail” to protect their turf, and he said the bill failed because of near-unanimous Democratic opposition plus enough Republicans who deferred to their local DAs.

Away from the border, the other front for state opposition to Biden immigration policies is the federal courtroom — lawsuits against the feds of the kind Democratic AGs launched relentlessly against the Trump administration. And before that, Texas succeeded in stopping Obama’s attempted DAPA amnesty edict for illegal-alien parents of U.S.-citizen kids.

The first such case Texas filed this year was against Biden’s announced 100-day moratorium on deportations; Texas won and the policy was enjoined by a federal judge, but Biden’s DHS just shut down deportations anyway, and when the 100-day period passed, the whole issue turned into a pumpkin.

Paxton’s office is involved in other lawsuits as well, including one to restore the Remain in Mexico program and one in opposition to the new ICE policy to refuse to take custody of many illegal aliens who complete their state prison sentences for state crimes (which means that Texas is forced to release them back into its communities where they can — and many will — re-offend). In addition, Texas and other states are attempting to intervene to defend the Trump-era “public charge” rule intended to give green cards only to those who are likely to be able to support themselves — the rule was challenge by Democratic AGs in Washington and several other states, but the incoming Biden administration refused to continue to defend it in court.

More cases will likely be filed, Paxton said: “It’s a matter of time, resources, and figuring out the right way to get standing.”

“Every day,” he said, “we’re looking at how we can stem the tide of illegal immigration.”

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