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On immigration, advocates say a 'shadow Trump administration' is tying Biden's hands

A stretch of border wall near Yuma, Ariz., in 2019.
Joel Rose
A stretch of border wall near Yuma, Ariz., in 2019.

Updated May 13, 2022 at 3:24 PM ET

When lawyers for Arizona, Louisiana and Missouri went to court to challenge the Biden administration's plan to lift the pandemic border restrictions known as Title 42, they didn't file the lawsuit near the border, or in a state capital.

They brought their case to the Western District of Louisiana, where it was very likely to be assigned to a judge appointed by former President Trump.

That helps explain why U.S. District Judge Robert Summerhays heard oral arguments today in a courthouse in Lafayette, Louisiana, more than 500 miles from the border.

President Biden has struggled to end a number of hardline immigration restrictions held over from the Trump administration, in large part because Republican-led states have gone to court to keep those policies in place. The states argue that lifting border restrictions will lead to increased health care and other costs.

But immigrant advocates say these states are deliberately steering cases to federal judges appointed by former President Trump, where they know they'll get a sympathetic hearing.

"To date, these states have brought no less than 17 lawsuits challenging President Biden's immigration moves," said Karen Tumlin, the founder and director of the Justice Action Center, on a call this week with reporters. In effect, these states are using the courts to "keep a shadow Trump administration in office on immigration issues," she said.

The court appears likely to extend Title 42

More than 20 states have joined the lawsuit seeking to block the Biden administration from ending Title 42 later this month, arguing that the Centers for Disease Control and Prevention did not go about terminating the public health order properly.

Title 42 was put in place by the CDC in March of 2020 to stop the spread of COVID-19. That unprecedented move allows immigration authorities to quickly expel migrants at the southern border to Mexico or their home countries, without giving them a chance to seek asylum under U.S. law.

With COVID vaccines now widely available, the CDC says Title 42 is no longer necessary to protect public health and has ordered the policy to end on May 23. But more than 20 states have joined a lawsuit seeking to block that from happening.

The Department of Homeland Security says it has a plan in place to deal with a possible influx at the border when Title 42 is lifted — though Congressional Republicans, and some Democrats, remain skeptical.

Judge Summerhays has already signed a temporary restraining order preventing the Biden administration from beginning to wind down the policy before May 23rd. In a status conference last month, Summerhays signaled that he is likely to side with the states on their claim that the CDC did not act properly when it moved to terminate Title 42.

"I find that the plaintiff states have demonstrated a likelihood of success on the merits with respect to, at a minimum, their claim that the April 1 termination order was not issued in compliance with the Administrative Procedure Act," Summerhays said, according to a transcript.

In their lawsuit, the states challenging the termination order claim the Biden administration failed to account for the potential costs of lifting Title 42, including increased health care costs for the states.

"This would be a catastrophe," said Missouri Attorney General Eric Schmitt in an interview with FOX News last month.

Missouri Attorney General Eric Schmitt (right) talks to reporters outside the U.S. Supreme Court last month.
Chip Somodevilla / Getty Images
Getty Images
Missouri Attorney General Eric Schmitt (right) talks to reporters outside the U.S. Supreme Court last month.

"What we're arguing is, look, they haven't gone about this the right way in the first place. They haven't had a notice and comment period, if you wanted to rescind this at all," Schmitt said. "They're supposed to weigh the downside with what they're advocating for. They haven't done it, which is why we think we'll be successful."

States have been successful in legal challenges so far

So far, the states challenging Biden's immigration policies have won some key victories.

A federal judge in Texas, who was also appointed by Trump, blocked President Biden's 100-day moratorium on deportations.

Another Trump appointee in Texas ordered the administration to restart the so-called "Remain In Mexico" program, the Trump-era policy that forced migrants to wait in dangerous border towns for their immigration court hearings.

In the case before Judge Summerhays in Louisiana, the states are seeking a preliminary injunction that would block the Biden administration from ending Title 42. Summerhays said he would rule before Title 42 restrictions are scheduled to end on May 23rd.

If Judge Summerhays grants that request as expected, the Biden administration could appeal. But the Fifth Circuit Court of Appeals, which takes cases from both Louisiana and Texas, has not been friendly to the Biden administration.

Conservatives argue this is no different from what happened during the Trump administration, when Democratic attorneys general and immigrant advocates challenged his immigration policies in courts on the coasts that they considered favorable.

Those courts also issued nationwide injunctions blocking Trump's immigration policies — sometimes infuriating administration officials, including then-Attorney General Jeff Sessions, who called it an "absurd situation."

"A plaintiff only needs to win once to stop a national law from taking effect, or a national policy. But the government needs to win every time to carry out its policies," Sessions said in 2018 at a symposium hosted by the Federalist Society. "That makes governing all but impossible."

Even Supreme Court Justice Neil Gorsuch complained about the practice in a written opinion.

The high court often sided with the Trump administration, overruling lower court injunctions in several high-profile immigration cases. But when the Biden administration asked for emergency relief in the recent "Remain In Mexico" case, the Supreme Court said no.

That's a crucial difference, according to Stephen Vladeck, a professor at the University of Texas School of Law.

"That was a harbinger of things to come," Vladeck said in an interview. "And a sign that no one in Texas missed."

The Supreme Court heard arguments in the "Remain In Mexico" case last month. A ruling is expected in June or July.

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Corrected: May 13, 2022 at 12:00 AM EDT
An earlier version of this story misstated the name of Karen Tumlin's organization. It is the Justice Action Center, not the Justice Action Network.
Joel Rose is a correspondent on NPR's National Desk. He covers immigration and breaking news.