One of the first bills that could be sent to President Donald Trump after he is inaugurated Monday would vastly expand immigration detention and make it easier for states to influence immigration policy. And it has already passed one house of Congress with support from a significant number of Democrats.
The bill, the Laken Riley Act, is named after a young woman who was killed last February by an undocumented immigrant from Venezuela. Her murderer was sentenced to life in prison.
Riley has become a cause célèbre for Republicans, who argue that her death is the result of President Joe Biden’s immigration policies that allowed him to walk free despite a shoplifting charge. The GOP broadly backs the bill, but some Democrats, reeling from major losses in 2024, Americans’ frustration with the immigration status quo, and record-high border crossings under Biden, are backing or considering it as well: 48 of the House of Representatives’ 215 Democrats voted in favor. Two Democratic Senators, Ruben Gallego of Arizona and John Fetterman of Pennsylvania, co-sponsored the Senate version, though it’s not clear if it will win the five more Senate Democrats it likely needs to pass.
The bill has two major parts:
- It would mandate that the federal government detain all immigrants accused of theft and other related crimes. The man convicted of killing Riley had been charged with shoplifting prior to her death but had failed to appear in court; the bill’s supporters argue that if he had been detained on that charge, Riley would still be alive.
- It would give states a broad right to bring lawsuits against federal immigration policy.
The bill’s proponents argue it will be a major step forward for public safety. But if passed, the bill could also strain existing immigration enforcement resources, infringe on immigrants’ due process rights, and create a chaotic (and potentially unconstitutional) situation in which states are allowed to dictate federal immigration policy.
The Laken Riley Act would vastly expand immigration detention
Right now, federal law mandates that immigrants who have committed certain serious crimes, including murder, rape, domestic violence, and some drug offenses, be detained. But beyond those categories, federal immigration officials have discretion.
In 2021, the Biden administration issued policy guidance prioritizing people who were a national security threat, public safety threat, or “border security threat” (those who had recently entered the US without authorization). Otherwise, the Department of Homeland Security urged individual immigration officers to use their prosecutorial discretion — essentially, to leave everyone else alone.
The rationale was that immigration agencies have limited resources for enforcement, and Biden was aiming those resources as what he viewed as key threats among the estimated 11 million undocumented immigrants living in the US.
“The federal government will never have enough money or manpower to deport every undocumented noncitizen,” said Stephen Yale-Loehr, an immigration law professor at Cornell Law. “Courts are not equipped to delve into the details of who to prioritize for deportation.”
The Laken Riley Act would essentially upend those enforcement priorities, requiring that a much larger population of undocumented immigrants be detained.
The bill would require federal immigration authorities to detain undocumented immigrants accused of theft and other related crimes like shoplifting or burglary. Accusations triggering mandatory detention could be made in the US or another country. For example, if someone was charged with burglary in Venezuela and that came to the attention of US immigration officials, the accused burglar would have to be detained on that basis.
This would be a major expansion of immigration detention and deportation.
US Immigration and Customs Enforcement estimates that the bill would cost $83 billion over the next three years, enough to fund 118,500 additional detention beds, 40,000 more personnel, and a 25 percent increase in deportation flights. That updated estimate, reportedly circulated among Democratic leadership on Monday, is many times higher than ICE’s previous $3.2 billion estimate.
These immigrants would be detained even if they weren’t convicted and without the opportunity for a bond hearing. Currently, it’s rare for anyone in the US accused of a crime to be detained without a bond hearing, even when the crime is as serious as murder. In immigrants’ cases, mandatory immigration detention can actually impede their prosecution by making it logistically harder for them to show up for proceedings in their criminal cases.
Immigrants, even those without documentation, have the same rights to due process as any other individual in the US, and immigrant advocates have argued this raises serious due process concerns: It increases the risk that an innocent person could be held on a prolonged basis with limited access to legal counsel that could help them win a case challenging their deportation.
“This potential provision could be unconstitutional given our Fifth Amendment right around liberty,” Adriel Orozco, senior policy counsel at the American Immigration Council, a think tank focused on immigration policy said. “Its ramifications are so far-reaching in the human context.”
The bill would expand states’ role in shaping federal immigration policy
The other major prong of the bill would give states the automatic right to bring lawsuits challenging federal immigration policy on detention and visas, or decisions in individual immigration cases, if they can demonstrate they have experienced financial harm exceeding $100.
This is a mechanism that Republicans say is necessary to ensure the federal government is complying with its mandate to detain immigrants under the act. But in practice, it means courts would have to rule on the merits of states’ claims rather than being able to dismiss them outright, and could potentially be inundated with such lawsuits.
“You could see any number of really hostile state officials filing lawsuits to change decisions that they don’t like,” Sarah Mehta, ACLU senior border policy counsel, said.
That could include, for example, challenging the issuance of visas to citizens of certain countries against which Republicans have taken a hardline stance, such as China, she said. That would have worrying implications not just for US immigration policy, but also lead to states dictating US foreign policy and having a major impact on the US relationship with both adversaries and allies. It could also make for open season on the decisions made by thousands of immigration line officers in the course of their day-to-day work.
It’s possible that Democratic states could also try to use the bill to challenge federal immigration policy, perhaps to stem the tide of arrivals to blue cities — a phenomenon some state and local Democratic leaders have complained about — though it’s not clear exactly on what basis they would do so.
Mehta said that the provision allowing for lawsuits is “clearly constitutional overreach” and courts might recognize it as such if the bill were to become law. She noted that the US Supreme Court already ruled in a 2023 case brought by Texas challenging the Biden administration’s immigration enforcement priorities that such policies are under the exclusive purview of the federal government based on the Constitution, recognizing the need for a unified US response to immigration.
“States shouldn’t be intervening in foreign policy or any of these immigration decisions because they don’t have the expertise,” Mehta said.
If the bill becomes law and survives legal scrutiny, the “result is that courts would become the final arbiters of immigration policy,” Yale-Loehr said.
Some Senate Democrats are now pushing for changes to the bill, including paring back the provision about immigration lawsuits. The Senate resumed debate on those amendments Wednesday afternoon.
If the legislation is passed without amendments, that could sow chaos, inviting lawsuits challenging every new regulation or policy memo without addressing broader issues in the US’s broken immigration system, which hasn’t been meaningfully reformed since 1986.
Those issues include an underresourced asylum system that isn’t equipped to handle diverse populations; processing people at the border in a humane and orderly way, and expeditiously returning them to their home countries if they do not qualify for protections in the US; a lack of legal pathways to the US designed for current economic and humanitarian needs; millions of undocumented immigrants who have laid roots in the US yet have no way of achieving legal status; and factors pushing people out of their home countries that will continue to drive people to migrate.
The Laken Riley Act would leave all of that unresolved.
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