As Congress debated the Laken Riley Act, a bill mandating stricter detention standards for migrants facing criminal charges, opponents criticized it as a frontal assault on due process and an unfunded mandate of impractical proportions.
But the bill may also hand the White House and its Republican allies all the leverage in key budget debates over immigration enforcement.
“It doesn’t have a funding component in it, but it does set up an argument that ICE will need money to expand,” said Nithya Nathan-Pineau, an attorney at the Immigrant Legal Resource Center. “Detention is the funnel to deportation. This is how mass deportation gets implemented.”
The bill, which President Donald Trump signed last week, requires Immigration and Customs Enforcement to take custody of all migrants charged with any of a series of crimes ranging from shoplifting to murder. That mandate veers sharply from the agency’s practice over the last 15 years, in which ICE issued detainers at its discretion — typically for people with criminal convictions or a history of immigration violations.
Critics of the bill view it as a draconian effort to sweep more people into immigrant detention while brushing aside due process. But the law’s greatest significance likely lies in its mandates — and the unusual mechanism designed to enforce them.
Under the Laken Riley Act, ICE no longer has the ability to set its own detention priorities. The agency will likely exhaust its available detention bed space shortly after implementing the new law.
ICE commanded detention capacity for 41,500 people last year. An agency memo estimated that the Laken Riley Act’s provisions would more than double the agency’s detention requirements overnight, demanding an additional 60,000 beds at a cost of $3 billion.
An internal ICE estimate obtained by NPR last month placed the bill’s requirements far higher: as many as 110,000 new detention beds at a cost of $27.9 billion, including all the lawyers and support staff needed to shuttle people from detention to deportation — just for the first year.
“This was rammed through without careful consideration of both its widescale application and whether that serves any useful societal purpose,” said Jordan Wells, an immigration attorney at the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area.
ICE’s $9 billion budget isn’t enough to plug the glaring hole Congress voted to create, whatever the true cost turns out to be. That leaves ICE careening toward noncompliance with federal law.
If that happens, under the new law, state attorneys general will be allowed to sue the federal government for damages for failing to take custody of any migrant whose charges now require automatic federal detention.
That unconventional provision offers a major gift to red states that have made a pastime of suing the federal government to overturn immigration policies implemented by Democratic Presidents Barack Obama and Joe Biden.
One of the major obstacles Republican-led challenges have faced is that the federal government’s sole control of immigration policy makes it hard for states to demonstrate “standing” — the legal requirement showing that a party has been damaged and that a court is the right venue to address the problem.
“It’s really bizarre,” Nathan-Pineau said. “I’m not aware of another, similar standing provision that would allow states to undo federal policy in the same way.”
Some see the unusual standing provision as a way for Republican-controlled states to contest more permissive immigration policies that a future Democratic president might try to enact one day.
But the Laken Riley Act also allows the red states to flood the federal courts with potentially thousands of claims against the Trump administration for failing to take custody of migrants charged with crimes covered by the new law. The law requires federal courts to expedite those lawsuits “to the greatest extent practicable.”
“When you look at how many cases are already pending and how many more people will be funneled into the deportation system, it’s really hard to imagine how much chaos that’s going to cause,” Nathan-Pineau said. “This is going to massively, massively clog up federal dockets with cases and issues that really are outside the purview of federal courts.”
Federal courts are already “overburdened with cases that are important and meaningful,” said Michelle Lapointe, legal director at the American Immigration Council. The Laken Riley Act’s mandate “to prioritize these frivolous lawsuits that these state AGs are now going to bring” will likely invite legal challenges over the constitutionality of the standing provision, she said.
“I think the courts are going to have to hash it out,” Lapointe added. “Congress can give people ways into the courts to sue, but the courts still have an independent duty to assess whether the harm the parties claim happened to them actually meets the constitutional minimum.”
Legal groups also may challenge the constitutionality of the Laken Riley Act by contending that such broad mandatory detention standards run afoul of due process.
“Preventative detention is totally anathema to being a free society,” Wells said. “We’re meant to use it sparingly under the Constitution. But under this law, the mere fact that you were arrested for or charged with shoplifting at some point subjects you to mandatory detention. It’s totally unusual and anathema to our legal system.”
But if the law is either allowed to stand or move forward while legal challenges progress, Congress will likely feel the pressure it inflicted upon itself when it comes time to debate ICE’s budget. The agency will likely be out of compliance with federal law and may face a flurry of lawsuits for failing to comply with the new mandatory detention requirements.
About a quarter of Democrats in the Senate and one-fifth in the House of Representatives voted in favor of the Laken Riley Act, handing Trump his first major legislative victory. The future of his promised mass deportation campaign may well depend on whether Democrats help him fund it.
“As a matter of policy, it doesn’t make a lot of sense — it makes much more sense to redo immigration law, which is what should have been done 30 years ago,” said David Leopold, chair of the immigration practice at UB Greensfelder law firm.
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“Unfortunately, it seems the Democrats are bending to whatever pressure is coming their way right now. It’s a big disappointment,” Leopold added. “We really need an opposition to these draconian policies.”