Texas Case Against Biden Hinges on Legality of Last-Minute Deal

(Bloomberg) -- The Department of Homeland Security, 12 days before President Joe Biden was sworn in, struck a “binding” deal with Texas agreeing to consult with the state for 180 days before making changes to immigration policy, effectively tying the hands of the new administration.

That Jan. 8 accord between Texas Governor Greg Abbott and then-acting Deputy Homeland Security Secretary Kenneth Cuccinelli is at the center of the first major lawsuit against the Biden administration.

On Friday, the state accused the federal government of violating the deal by planning a 100-day pause on deportations without first giving Texas a chance to object.

“Texas faces irreparable harm from having to provide costly educational, social, welfare, health care, and other services to illegal aliens who remain in Texas because Defendants have ceased removing them,” Texas Attorney General Ken Paxton said in the state’s filing.

U.S. District Judge Drew Tipton in Victoria, Texas, heard arguments Friday on Paxton’s request for a temporary restraining order against the plan while the case proceeds. Tipton, a Donald Trump appointee, said he’d rule soon.

The Justice Department argues the state is trying to usurp the federal government’s authority over immigration in its last-ditch deal with the Trump administration. Later Friday, the American Civil Liberties Union filed a brief siding with the Biden administration, calling the effort by Texas an illegal attempt to block the government’s exercise of its discretion on the removal of immigrants.

‘Deeply Problematic’

“Approving this agreement would set a deeply problematic precedent,” the ACLU said in its friend-of-the-court brief. “If an outgoing DHS official can sign away the next administration’s policy-making authority for six months, why not for four years? Or eight?”

The rights organization said that giving any credence to the agreement, even temporarily, would pave the way for similar last-minute deals between agencies and states -- or even outside parties -- as presidents depart.

“Our Constitution directs that presidential elections occur every four years, with the Executive authority transferring shortly thereafter,” the ACLU said. “But on Texas’s view, an outgoing administration need never yield power so long as it finds a willing contractor to lock in its policy preferences.”

Texas said in its motion for a restraining order that its deal with the Trump administration was “mutually beneficial” and was reached to promote “cooperation and coordination.” The state argues it has a unique exposure to immigration issues because of its long border with Mexico, and therefore deserves to have input on immigration changes.

The Justice Department calls it impermissible veto power.