PHOENIX – Arizona’s Attorney General’s Office (AGO) has amended its February 3rd lawsuit against the U.S. Department of Homeland Security (DHS) over its immigration policy that halts nearly all deportations for 100 days, even for those charged with or convicted of crimes.
Montana Attorney General Austin Knudsen has also joined the Arizona lawsuit on behalf of the State of Montana. Arizona and Montana also filed a motion for preliminary injunction asking the court to stop the DHS policies from being implemented.
The original complaint challenged the DHS Memorandum issued on the first day of the Biden Administration, called the “immediate 100-day Pause on Removals.” In addition to the DHS policy, Arizona and Montana are also now challenging the “Interim Guidance” issued by the Acting Director of ICE on February 18, 2021, which tries to supersede the original Memorandum but does not substantively change the policy to pause nearly all deportations of those who entered the country before November 1, 2020.
The amended complaint alleges that the original Memorandum and the Interim Guidance were promulgated without providing notice to Arizona and Montana, in violation of each State’s Memorandum of Understanding (MOU) with DHS. Additionally, both policies are in direct violation of federal law, 8 U.S.C. § 1231, that requires an alien, who has received a final deportation order, to be removed from the United States within 90 days.
The DHS Memorandum states it is to be in effect for 100 days, and the Interim Guidance states it is to be in effect for 90 days, but no apparent limiting factor is explained. If this action is permitted to stand, DHS could implement these polices for a longer period or even indefinitely, thus allowing the current Administration to unilaterally amend immigration laws without the required congressional action.
Law enforcement officials also are telling the Attorney General’s Office (AGO) that DHS is releasing undocumented aliens without testing them for COVID-19. Many are worried hospitals and medical centers, which have been operating at or near full-capacity due to the pandemic, could be overwhelmed. Possibly even more disturbing, the AGO has learned DHS is releasing potentially dangerous individuals without any coordination with local law enforcement.
The preliminary injunction notes that DHS did not engage in any prior consultation with anyone—inside or outside the federal government—about the anticipated effects and costs of the Removal Moratorium, including the number of aliens with final removal orders who will be released from ICE custody and the detrimental impacts on public safety, health, and state and local finances from such releases. Further, DHS made no attempt to follow the Administrative Procedure Act’s notice-and-comment procedures in issuing the Memorandum/Removal Moratorium.
The motion includes declarations from Pinal County Sheriff Mark Lamb, Cochise County Sheriff’s Office Chief of Staff Mark Napier, President for the Yuma Medical Center Dr. Robert Trenschel, and Administrator of the Division of Criminal Investigation at the Montana Department of Justice Bryan Lockerby. These declarations illustrate the harms Arizona and Montana will suffer under the new DHS policies, including unreimbursed costs related to incarceration and healthcare costs.
PHOENIX – Arizona’s Attorney General has joined a coalition of 12 states in filing a lawsuit against President Joe Biden’s administration over a massive expansion of federal regulations through executive order.
The lawsuit challenges President Biden’s Executive Order 13990, titled “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” The states allege that the Biden Administration did not have the authority to issue binding numbers for the social costs of greenhouse gases to be used in federal regulations, and that the potential stringency of federal regulations that could come from this executive order will stifle manufacturing, harm agriculture, and have serious economic impacts across the country.
Two industries that will be impacted by President Biden’s executive order are manufacturing and agriculture. According to the Arizona Department of Agriculture, the agriculture industry provides $23.3 billion to Arizona’s economy, resulting in 138,000 jobs. Manufacturing is also a key sector and an economic driver in Arizona. In 2019, manufacturers in Arizona produced approximately $31 billion worth of economic output – accounting for 8.4% of the state’s total GDP, according to the U.S. Bureau of Economic Analysis. Additionally, the industry has seen strong job growth. As of 2019, there were 177,300 manufacturing jobs in Arizona.
The lawsuit notes that the President’s interagency working group place the social cost of carbon dioxide, methane, and nitrous oxide at approximately $9.5 trillion; $269 billion for carbon dioxide, $990 billion for methane, and $8.24 trillion for nitrous oxide (assuming similar rates of emission between 2019 and 2020 in the United States, and a discount rate of 3%).
The states argue in the lawsuit that using these interim values could massively expand the scope and reach of the regulatory power of the federal government, potentially impacting the United States’ economy and every household in America.
In arguing that President Biden’s administration did not have the authority to enact this executive order and that this action should be taken by Congress, the lawsuit points to several reasons, including that the executive order did not have statutory authorization to create the working group, nor did the working group have statutory authority to set values for the social costs of carbon, methane, and nitrous oxide that “shall be used by regulatory agencies administering statutes pursuant to statutory delegation of authority enacted by congress.”
Further, the lawsuit states that dictating binding values for the social costs of carbon, nitrous oxide, and methane is a legislative action “that the Constitution vests exclusively in Congress through the vesting clause of Article I, § 1 of the Constitution.” The President’s exercise of this legislative authority thus violates the separation of powers, the most fundamental bulwark of liberty.
The lawsuit also alleges that the working group violated the requirements of the Administrative Procedure Act. The lawsuit points to the fact that there was no public notice or opportunity for public comment before publishing interim estimates, and that the proper weight was not given to the positive benefits of “affordable and reliable domestic energy and agricultural production.”
In addition to Arizona, state attorneys general from Arkansas, Indiana, Kansas, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Tennessee, and Utah joined the suit.
