On Thursday, the U.S. Senate advanced the Laken Riley Act for debate, which has already passed the House of Representatives with unanimous Republican and significant Democratic support. While Republicans and their Democratic collaborators have pushed the bill as a “commonsense” measure to deport supposedly dangerous migrants, it is better thought of as a stalking horse that hands immigration enforcement powers to far-right state attorneys general while doing almost nothing to prevent horrible crimes like the murder of Laken Riley.
In a case that appears to have been an attempted rape turned homicide, Riley’s death should have sparked a conversation around gendered violence and femicide, seeing as the United States has one of the highest rates of femicide in the world among high-income countries. However, these horrific crimes are most often committed by intimate partners, with white men representing the largest class of perpetrators, so broad generalizations might hit a little close to home for those in power. No, according to the right, the most pressing issue relating to the case is “Joe Biden’s open border” and “weak detention policies” (despite Biden deporting record numbers of immigrants).
If the sudden concern for women’s well-being from a party currently driving an increase in maternal mortality seems surprising, it may be because the right’s whole furor over the case is more about vilifying immigrants than preventing women’s deaths. While it is true that the perpetrator of Riley’s murder was undocumented, there is no indication that the Laken Riley Act would have actually done anything to prevent her death.
Jose Ibarra had been arrested for entering the country illegally and subsequently released while waiting for a removal hearing. During that time, he was arrested in New York for riding a scooter with a child not wearing a helmet and in Georgia for shoplifting, but local police did not hold him for long enough for Immigration and Customs Enforcement to determine whether to detain him. The Laken Riley Act does require federal authorities to detain arrested immigrants if they are not being held by local police, but it has no requirements for the police themselves, so there is nothing in this proposed law that would have compelled them to detain Ibarro.
What the bill does do is remove discretion from federal immigration officials, who decide which people likely pose a risk to the public—and whether to detain them—and which will be released while awaiting a hearing. Under the bill, any “alien who is inadmissible” under a separate provision of law who is arrested for a minor crime like shoplifting must be detained. No conviction is required—only an arrest. And while the language about “inadmissible aliens” implies that the law only applies to undocumented immigrants, the provision in question also includes immigrants who entered the country without being inspected but who were later granted asylum.
While this draconian enforcement requirement would cause incredible harm to asylum-seekers and other immigrants just trying to live their lives—while benefiting no one other than private prison companies—it would not even be the most structurally damaging component of the bill. The law also empowers state attorneys general to take the federal government to court almost at will, whenever they think the executive is not being strict enough in its enforcement. State attorneys general would have standing to sue over both individual detention decisions and larger policies like the Deferred Action for Childhood Arrivals program and others that set immigration enforcement priorities. It also gives attorneys general the option to sue to force visa bans on specific countries, such as China, that do not accept back all deportees from their nation.
This provision is a massive power grab for (Republican) state attorneys general and the conservative federal courts. Immigration has long been maintained as the province of the executive, with even the 6–3 conservative Supreme Court and Trump-appointed district court judges rejecting red states’ standing arguments in challenges to Biden immigration policies. Although the bill attempts to work around this problem by creating an explicit cause of action for states that can show $100 in financial harm to the state brought on by a challenged policy or decision (a laughably low bar), the Supreme Court has held that Congress cannot create a cause of action where there has not been an “injury in fact.” Courts have also held that for standing, the injury has to be “actual or imminent,” not just speculation that increased immigration puts a strain on resources and similar right-wing arguments. However, with federal courts thoroughly captured by the right and animosity toward immigration being one of Donald Trump’s only explicit beliefs animating his policy proposals, it would not be surprising to see courts grant standing anyway.
Making the right-wing power grab even more explicit is the fact that the law is a one-way ratchet. Challenges are only allowed when attorneys general want the federal government to restrict immigration further, but there are no options for an attorney general making a case that hard-line immigration enforcement causes the state financial harm. So essentially, whoever is running the executive, it will be Republican politicians and judges setting immigration policy.
It is hard to say whether the Democrats voting for this bill are pulling their usual Charlie Brown and Lucy with the football routine by capitulating in advance or if they have actually just turned on immigration, but either way immigrants will suffer, and the GOP take Democrats’ passivity as a sign that they should push more and more radical anti-immigrant legislation.
While Democrats play footsie with demagogues, Republicans have grabbed the reins of power everywhere they can. When they lose statewide races but retain their gerrymandered legislatures, they strip power from statewide officeholders in favor of the legislature. When democratically elected local governments provide too much support to their residents, Republicans use the power of the state government to take them to court. When ballot initiatives break popular policies through conservative strangleholds on red-state legislatures, Republicans limit direct democracy. And of course, once they maneuvered their way into a conservative supermajority on the Supreme Court, they fell in love with judicial supremacy.
Now they are coming for immigration policy so they can impose even more of their dystopian vision on the country. The left needs to mobilize to protect what remnants of influence and access to power they have, starting by voting down the Laken Riley Act. The right is ready for this fight, but it’s not too late for the Democrats to wake up.
