Key Democrats vote for increasing mandatory detention of immigrants

On Friday, the Senate voted to advance a bill that would significantly increase the number of undocumented immigrants subject to mandatory detention and give right-wing judges more power. Most notably, it has done so with help from Democrats who now fear being tagged as weak on immigration enforcement.

The Laken Riley Act is named after the 22-year-old Georgia woman who was murdered last year by a Venezuelan migrant in the country illegally. Ten Democratic Senators voted on Friday to advance the bill, which allowed Republicans to clear the 60-vote threshold needed to invoke cloture. Every Democrat who supported the bill represents a politically competitive state.

The ten Democrats voting for the bill were Sens. Ruben Gallego (D-Ariz.), Mark Kelly (D-Ariz.), Jon Ossoff (D-Ga.), Gary Peters (D-Mich.), Elissa Slotkin (D-Mich.), Maggie Hassan (D-N.H.), Jeanne Shaheen (D-N.H.), Catherine Cortez Masto (D-Nev.), Jacky Rosen (D-Nev.), and Mark Warner (D-Va.). Sen. John Fetterman (D-Pa.) is also supporting the bill but did not vote on Friday.

The legislation expands the circumstances under which undocumented immigrants face mandatory detention. Under current law, immigration judges already have broad authority to detain people whether or not they’ve been convicted or arrested. To face mandatory detention, undocumented immigrants generally have to be convicted of certain crimes. 

The Laken Riley Act that passed the House required mandatory detention for undocumented immigrants who are arrested, charged, or admitted to shoplifting, theft, and other related crimes. The Senate version, which is the one expected to become law, was amended to be even stricter. It expands mandatory detention to also cover cases where someone is implicated in assaulting a law enforcement officer, or a crime that causes death or serious bodily harm.

The legislation is now on a fast track to being signed by President-elect Donald Trump. The final bill is expected to easily pass the House and Senate. The initial version passed the House earlier this month with support from dozens of House Democrats. 

As I wrote last week, the support from Democrats is a sign of how much their stance on immigration has changed since Trump was first in office:

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. 

The theft provisions are related to the circumstances of Riley’s death in that the man who killed her, Jose Ibarra, had previously been arrested for shoplifting. But the bill does much more than just expand mandatory detention. As I noted last week: 

[T]he 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.  

From a Democratic perspective, there is no policy reason to vote for a bill that will likely lead to Republican attorneys general and right-wing judges wreaking havoc on the immigration system and visa policy. And the law is explicitly written so that only decisions by immigration officials to release people from detention can be challenged in court. It allows for no inverse scenario under which a Democratic attorney general could push for more progressive immigration policy.