With Donald Trump less than two weeks away from taking office and promising an agenda of mass deportations, Democrats are poised to hand Republicans major new powers over immigration policy. Why? Still shell-shocked from the November results, they apparently fear their reelection prospects if they don’t.
The Laken Riley Act—named for the 22-year-old Georgia woman who was murdered last year by a Venezuelan migrant who was in the country illegally—passed the House with support from 48 Democrats earlier this week. Senators voted overwhelmingly in favor of advancing the bill on Thursday before potentially considering amendments and voting on the bill itself. The legislation would both mandate the detention of certain undocumented immigrants and make it easier for Republican attorneys general to sue the federal government over immigration matters—legal challenges that could then lead to sweeping decisions by right-wing judges.
Republicans do not have the 60 votes needed to overcome a filibuster in Senate on their own. But they may attract enough Democratic support to pass the bill. Sens. John Fetterman (D-Pa.), Ruben Gallego (D-Ariz.), Mark Kelly (D-Ariz.), Gary Peters (D-Mich.), Elissa Slotkin (D-Mich.), and Jacky Rosen (D-Nev.) have already signaled they will support the bill. Sen. Jeanne Shaheen (D-N.H.) told The Hill that she was “inclined” to support the bill as well.
The willingness of Democrats, particularly those in swing districts and states, to support the bill is a sign of how vulnerable many in the party now understand themselves to be on immigration. Instead of fighting Donald Trump’s immigration agenda, as they did during his first term, Democrats are increasingly willing to cave to it in the hopes of insulating themselves from future Republican attacks.
Democratic legislators are not wrong to conclude that they paid a political price for the years of dysfunction at the border that expanded to cities across the nation during Joe Biden’s administration. But the bill they are considering voting for would do nothing, at least directly, to create order at the border. And despite its name, its most important provisions have little to do with Laken Riley.
Specifically, the bill would give state attorneys general explicit authority to sue the federal government in a number of situations where they allege that even minor harm has been caused by a range of federal immigration enforcement decisions. This would be a break from the status quo under which the federal government has almost exclusive control over immigration matters. After being filed, lawsuits from Republican attorneys general would often get heard by right-wing district court judges in states like Texas. Those judges could then order sweeping changes that have major national and international implications.
One provision would let attorneys general sue the US Secretary of State to demand that judges restrict, or ban, visas from countries that refuse to take back citizens who are ordered deported from the United States. As Aaron Reichlin-Melnick, a senior fellow at the American Immigration Council, explained in an op-ed for MSNBC, the list of these “recalcitrant” countries ranges from smaller nations like Cuba to major world powers such as China and India.
Both Republican and Democratic administrations have decided that the costs of banning everyone from China and India, for example, outweighs whatever benefits might come from increasing deportations to those countries. “Yet should the Laken Riley Act become law,” Reichlin-Melnick noted, “that decision may no longer be in the hands of our nation’s top diplomats and law enforcement officers; it could be in the hands of a single federal district court judge in Texas or Louisiana.”
A related provision in the bill would allow attorneys general to sue the US Attorney General and Secretary of Homeland Security effectively anytime federal immigration officials decide to release someone from detention while their case proceeds. The law is written so that attorneys general cannot sue to challenge a decision to keep someone detained.
Despite the significance of these provisions, much of the attention has focused on a different section of the bill. That part would subject undocumented immigrants to mandatory detention if they are arrested, charged, or admit to shoplifting, theft, and other related crimes.
Republicans are focusing on theft in particular because of Ibarra’s criminal history. In October 2023, he and his brother were arrested for shoplifting in Georgia. Later that year, a bench warrant was issued for Ibarra’s arrest when he missed his court date. Two months later, he murdered Riley. (In November, a Georgia judge found Ibarra guilty and sentenced him to life in prison without parole.)
The language in the bill is a break with sections of US law that require someone be convicted of certain crimes to face mandatory detention. It is also worth stressing that immigration authorities already have broad authority to detain undocumented immigrants—including those charged with theft. The bill advancing now would require that they do so.
There is also no statute of limitations in cases where someone admits to having stolen something. As a result, an undocumented immigrant who admitted to shoplifting decades ago—potentially in a different country—could face mandatory detention if the bill becomes law. Sarah Mehta, senior policy at the American Civil Liberties Union, said in a statement that it could lead to detaining “a mother who admits to shoplifting diapers for her baby, or elderly individuals who admit to nonviolent theft when they were teenagers.”
But it is the transfer of power to Republican attorneys general and judges allied with them that would likely have the most far-reaching consequences. As Rep. Alexandria Ocasio-Cortez (D-N.Y.) recently warned about the bill, “I fear that it’s only going to be when it comes to peoples’ doorsteps that they’re going to realize fully what people have consented to.”
