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Texas takes its fight over Biden's border policies to judges appointed by Trump

RACHEL MARTIN, HOST:

Texas is making another move in the battle over immigration. The Republican-led state government there has filed a series of lawsuits over border policy, and critics say they are steering these cases to judges appointed by former President Trump. NPR's Joel Rose reports.

JOEL ROSE, BYLINE: The Texas attorney general announced his latest immigration lawsuit flanked by his Republican peers from nearly a dozen states.

(SOUNDBITE OF MONTAGE)

LESLIE RUTLEDGE: From the state of Arkansas, we see the impact of illegal immigration every...

JOHN O'CONNOR: This border crisis is so personal to the people of Oklahoma...

ASHLEY MOODY: We are feeling the effects in Florida.

ROSE: They came for a self-described border summit last month hosted by Texas Attorney General Ken Paxton.

(SOUNDBITE OF ARCHIVED RECORDING)

KEN PAXTON: We have now filed a lawsuit with many of the states standing here with me today.

ROSE: This lawsuit is targeting a policy called the Central American Minors Program, which is intended to help at-risk children reunite with parents who are already in the U.S. The Biden administration says it creates a safe and legal path so that these families won't turn to smugglers to get their kids across the border. Paxton says it's illegal.

(SOUNDBITE OF ARCHIVED RECORDING)

PAXTON: None of this has been authorized by Congress, and it just increases the incentive for people to come across our border illegally and violate federal law.

ROSE: Paxton held the press conference in the Rio Grande Valley near the U.S.-Mexico border, but the lawsuit was filed more than 700 miles away in Amarillo, where it was very likely to be heard by a judge appointed by former President Trump. Paxton has now filed at least six immigration lawsuits against the Biden administration, and they have mostly followed the same blueprint.

STEPHEN VLADECK: Texas has basically deputized itself as the immigration enforcer.

ROSE: Stephen Vladeck teaches at the University of Texas School of Law. What's remarkable about these cases, he says, is where they are being filed - in parts of the state where there are few federal judges, often just one in a division. Vladeck says there is a name for this.

VLADECK: Texas is judge shopping. Texas is filing this lawsuit in Amarillo, in Lubbock, in Galveston, not in Austin, so that they can actually ensure that they get what, from Texas' perspective, is a friendly district judge.

ROSE: In its most recent lawsuit, Vladeck says Texas had bad luck, and the case was randomly assigned to another federal judge in Dallas who was appointed by Bill Clinton. But for the most part, the strategy has worked. One Trump appointee blocked President Biden's 100-day moratorium on deportations. Another ordered the administration to restart Remain in Mexico, the Trump-era policy that forced migrants to wait in dangerous border towns for their immigration court hearings. Ken Paxton and Missouri Attorney General Eric Schmitt hailed that ruling.

(SOUNDBITE OF ARCHIVED RECORDING)

ERIC SCHMITT: We took Joe Biden all the way to the Supreme Court, and we won. That policy was working under President Trump.

ROSE: In some ways, this is similar to what Democratic AGs and immigrant advocates did during the Trump administration when they challenged his immigration policies in relatively liberal courts on the coasts. Those courts, too, issued nationwide injunctions, and that infuriated Trump officials, including then-Attorney General Jeff Sessions, who called it an absurd situation.

(SOUNDBITE OF ARCHIVED RECORDING)

JEFF SESSIONS: 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. That makes governing all but impossible.

ROSE: Even Supreme Court Justice Neil Gorsuch complained. And the high court often sided with the Trump administration, blocking lower-court injunctions in several major 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, says Stephen Vladeck.

VLADECK: I think that was a harbinger of things to come and a sign that no one in Texas missed.

ROSE: Later this month, another Texas lawsuit is heading to trial. This one challenges the Biden administration's limits on who immigration authorities can arrest and deport. They will be heard by the same Trump appointee who's already ruled against President Biden twice before.

Joel Rose, NPR News.

(SOUNDBITE OF BLUE STEEL'S "DOUBLE AGENT") Transcript provided by NPR, Copyright NPR.

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