During the Trump administrationโs final weeks, the Department of Homeland Security quietly signed agreements with Arizona and at least three other states that threaten to temporarily derail President Bidenโs efforts to undo his predecessorโs immigration policies.
The agreements say Arizona, Indiana, Louisiana and Texas are entitled to a 180-day consultation period before executive branch policy changes take effect. The Biden administration rejects that argument on grounds that immigration is solely the federal governmentโs responsibility under the Constitution.
The first legal test came in Texas, where the Republican governor and attorney general challenged the Democratic presidentโs 100-day moratorium on deportations, which took effect Friday. On Tuesday, U.S. District Judge Drew Tipton issued the temporary restraining order sought by Texas, barring the U.S. government from enforcing the pause on deportations.
Former President Donald Trump relied heavily on executive powers for his immigration agenda because he was unable to build enough support for his policies in Congress. Now some of Trumpโs supporters say Biden is going too far in doing the same to reverse them.
The Homeland Security Department declined to comment, citing the lawsuit. The Trump administration, usually eager to trumpet immigration enforcement, stayed publicly quiet on the agreements, which were first reported by BuzzFeed News.
The nine-page agreements known as Sanctuary for Americans First Enactment, or SAFE, are expansive. They require that state and local governments get 180 daysโ notice of changes in the number of immigration agents, the number of people released from immigration custody, enforcement priorities, asylum criteria and who qualifies for legal status.
Without offering evidence, the agreements say looser enforcement can hurt education, health care, housing and jobs.
Arizona Attorney General Mark Brnovich, a Republican, wrote Tuesday in a letter to the acting director of Homeland Security that he signed such an agreement on Jan. 8.
โAs the Chief Law Enforcement Officer for the State of Arizona, one of my duties is to ensure the protection of our Stateโs residents,โ Brnovich wrote.
The Biden administrationโs attempt to pause deportations for 100 days โcould lead to overcrowding at ICE facilities, forcing the release of dangerous offenders into our State,โ Brnovich continued. โAdditionally, it has come to our attention that people charged with or convicted of felonies have been released without coordination with the appropriate court or probation department.โ He asked for data on releases from custody.
A spokeswoman for Brnovich, Katie Conner, said Arizona โhas numerous cooperative agreements with federal, state and local enforcement agencies, including DHS.โ
Louisiana Attorney General Jeff Landry, also Republican, signed an agreement on Dec. 15 to โstem the tide of illegal immigration,โ spokesman Cory Dennis said.
In Indiana, former state Attorney General Curtis Hill, a Republican, signed the agreement on Dec. 22. It will remain in place after an initial review, an office spokeswoman said.
Hiroshi Motomura, a professor of immigration law and policy at the University of California at Los Angeles School of Law, called the agreements โa very unusual, last-minute sort of thingโ and said they raise questions about how an administration can tie the hands of its successor. He believes a deportation moratorium was within a presidentโs power.
Steve Legomsky, professor emeritus of the Washington University School of Law and former chief counsel for U.S. Citizenship and Immigration Services, said the agreements are โa terrible ideaโ that could create โa race to the bottom,โ with states opposing immigration competing against each other to drive immigrants elsewhere.
โFor our entire history, immigration policy has been understood to be the exclusive responsibility of the federal government,โ Legomsky said.
Keeping immigration enforcement with the federal government allows the nation to speak with a single voice as a matter of foreign policy and consistency across states, Legomsky said. We โcanโt have 50 conflicting sets of immigration laws operating at the same time,โ he said.
The Biden administration made similar arguments in a court filing Sunday after Texas asked the federal judge to block the deportation moratorium.
In addition to the deportation moratorium, the Biden administration suspended a policy to make asylum-seekers wait in Mexico for hearings in U.S. immigration court. Six of Bidenโs 17 first-day executive orders dealt with immigration, such as halting work on a border wall with Mexico and lifting a travel ban on people from several predominantly Muslim countries.
Photos: 2020 General Election in Pima County and Arizona
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Judge throws out lawsuit, finds no fraud or misconduct in Arizona election
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PHOENIX โ A judge tossed out a bid by the head of the Arizona Republican Party to void the election results that awarded the stateโs 11 electoral votes to Democrat Joe Biden.
The two days of testimony produced in the case brought by GOP Chairwoman Kelli Ward produced no evidence of fraud or misconduct in how the vote was conducted in Maricopa County, said Maricopa County Superior Court Judge Randall Warner in his Friday ruling.
Warner acknowledged that there were some human errors made when ballots that could not be read by machines due to marks or other problems were duplicated by hand.
But he said that a random sample of those duplicated ballots showed an accuracy rate of 99.45%.
Warner said there was no evidence that the error rate, even if extrapolated to all the 27,869 duplicated ballots, would change the fact that Biden beat President Trump.
The judge also threw out charges that there were illegal votes based on claims that the signatures on the envelopes containing early ballots were not properly compared with those already on file.
He pointed out that a forensic document examiner hired by Wardโs attorney reviewed 100 of those envelopes.
And at best, Warner said, that examiner found six signatures to be โinconclusive,โ meaning she could not testify that they were a match to the signature on file.
But the judge said this witness found no signs of forgery.
Finally, Warner said, there was no evidence that the vote count was erroneous. So he issued an order confirming the Arizona election, which Biden won with a 10,457-vote edge over Trump.
Federal court case remains to be heard
Fridayโs ruling, however, is not the last word.
Ward, in anticipation of the case going against her, already had announced she plans to seek review by the Arizona Supreme Court.
And a separate lawsuit is playing out in federal court, which includes some of the same claims made here along with allegations of fraud and conspiracy.
That case, set for a hearing Tuesday, also seeks to void the results of the presidential contest.
It includes allegations that the Dominion Software voting equipment used by Maricopa County is unreliable and was programmed to register more votes for Biden than he actually got.
Legislative leaders call for audit but not to change election results
Along the same lines, Senate President Karen Fann and House Speaker Rusty Bowers on Friday called for an independent audit of the software and equipment used by Maricopa County in the just-completed election.
โThere have been questions,โ Fann said.
But she told Capitol Media Services it is not their intent to use whatever is found to overturn the results of the Nov. 3 election.
In fact, she said nothing in the Republican legislative leadersโ request for the inquiry alleges there are any โirregularitiesโ in the way the election was conducted.
โAt the very least, the confidence in our electoral system has been shaken because of a lot of claims and allegations,โ Fann said. โSo our No. 1 goal is to restore the confidence of our voters.โ
Bowers specifically rejected calls by the Trump legal team that the Legislature come into session to void the election results, which were formally certified on Monday.
โThe rule of law forbids us to do that,โ he said.
In fact, Bowers pointed out, it was the Republican-controlled Legislature that enacted a law three years ago specifically requiring the stateโs electors โto cast their votes for the candidates who received the most votes in the official statewide canvass.โ
He said that was done because Hillary Clinton had won the popular vote nationwide in 2016 and some lawmakers feared that electors would refuse to cast the stateโs 11 electoral votes for Trump, who won Arizonaโs race that year.
โAs a conservative Republican, I donโt like the results of the presidential election,โ Bowers said in a prepared statement. โBut I cannot and will not entertain a suggestion that we violate current law to change the outcome of a certified election.โ