(The Center Square) — Nineteen attorneys general, led by Arizona AG Mark Brnovich, have filed an amicus brief in the US Supreme Court in a case the Biden administration is fighting after a federal judge in Texas ruled against it last month.


Texas and Louisiana are suing a Department of Homeland Security policy to change deportation policies.

The states won in federal district court last month. The Justice Department appealed, asking the Fifth Circuit Court of Appeals to stay the lower court’s decision. The court denied the stay pending an appeal on July 6. The DOJ then appealed to the US Supreme Court, seeking a stay of the district court’s decision.

The Attorney General then filed an expedited brief with Associate Justice Samuel Alito, the Circuit Justice for the Fifth Circuit.

It’s about DHS Secretary Alejandro Mayorkas changing immigration policy enforcement by issuing a series of memoranda and guidelines. He first issued “interim guidance” on January 20, followed by a February 18 ICE memorandum that drastically changed deportation policies, including restricting the issuance of detention warrants for dangerous criminal aliens.

Its latest memorandum, dated September 2021, states: “The fact that a person is a removable non-citizen should therefore not alone be the basis for an enforcement action against him. We will use our discretion and better target our enforcement resources. Justice and the well-being of our country require it.”

The policies violate the immigration statute enacted by Congress, argued Texas Attorney General Ken Paxton and Louisiana Attorney General Jeff Landry, and also violate the Administrative Procedures Act.

Since then, Mayorkas has issued other memoranda against which Paxton, Landry, Brnovich and others have sued. Judges have also ruled in favor of lawsuits filed by Paxton, Landry and Brnovich and others after arguing Mayorkas lacks legal authority to change laws set by Congress.

A federal judge in Texas made a similar statement. In June, he ruled in favor of Texas and Louisiana, overturning the last memo and prompting the government to appeal.

U.S. District Judge Drew Tipton said Mayorkas’ policies were “arbitrary and capricious, unlawful and disrespectful of procedure under the Administrative Procedures Act.” He also refused any other relief requested by the administration.

In their appeal to the Supreme Court, the AGs argue: “The Amici States and their citizens continue to suffer significant costs from illegal immigration – including billions of dollars in new spending related to law enforcement, education and health care programs – as a direct result of the defendants’ failure to enforce the immigration law. These damages are compounded by DHS’ increasingly brazen disregard for the requirements of our country’s immigration laws and Administrative Procedures Act.

“The border is in crisis,” they argue. “This DHS administration is lawless. And states continue to suffer escalating irreparable harm as the border crisis steadily deepens to an increasingly unprecedented level of illegal border crossings.”

DOJ Attorney General Elizabeth Prelogar petitioned the Supreme Court to stay the district court’s decision outside of Texas and Louisiana.

She argued that “the only tangible harm the district court found is that the guidance caused DHS to overturn a total of only 15 Texas inmates over a period of several months.” That does not remotely justify allowing the statewide vacancy of the District Court to remain in effect for an extended period while the court’s disruptive and unprecedented decisions are subject to appeal.”

However, Texas Gov. Greg Abbott has repeatedly quantified the cost to Texas. The state legislature has allocated more than $4 billion to border security efforts and is expected to allocate more.

Arizona Gov. Doug Ducey recently signed a $564 million border security bill that will provide $335 million in state sales tax revenue to build a wall on state lands along the shared border with Mexico. These costs are in addition to others that the state has spent on border security efforts.

They also exclude those borne by taxpayers, who cover their respective states’ share of the cost of state welfare programs provided to illegal immigrants, including Medicaid, Medicare, CHIP, food stamps, housing, and transportation and education costs.

Paxton has estimated the cost to Texas taxpayers at over $850 million a year before the border security efforts that Abbott and the Legislature implemented last year.

States joining Arizona include Alabama, Alaska, Arkansas, Florida, Georgia, Kansas, Kentucky, Indiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Utah, West Virginia and Wyoming.

By Bethany Blankley | The Center Square contributor