WASHINGTON — Current and former Trump administration officials say the Department of Homeland Security has made a last-minute effort to “sabotage” the incoming administration’s efforts to unroll its tough immigration policies by signing legal agreements in recent weeks with state and local authorities that are intended to delay any such changes for 180 days.
Homeland Security has entered into agreements that would require the agency, even under the leadership of the Biden administration, to consult with certain state and local jurisdictions “before taking any action or making any decision that could reduce immigration enforcement, increase the number of illegal aliens in the United States, or increase immigration benefits or eligibility for benefits” for undocumented immigrants.
The states and localities would then have 180 days to provide comment — and the Biden officials would have to consider their input and provide a “detailed written explanation” if they rejected it.
Four such agreements, signed by the attorneys general of Indiana, Louisiana and Arizona and the sheriff of Rockingham County, North Carolina, were first reported by BuzzFeed News. Legal experts have questioned whether they can be enforced.
NBC News has reviewed the four agreements, which were signed from Dec. 15 to Dec. 29 by the localities and on Jan. 8 by Ken Cuccinelli, the senior Trump official performing the duties of deputy secretary of homeland security. Two current Trump administration officials said more such agreements have been signed by other states and municipalities.
One of the current officials said the documents were written with the sole purpose of delaying Biden’s immigration agenda by six months.
“The whole point is 110 percent to screw the incoming administration from doing anything for six months,” one of the officials said, adding that the broad language could keep the agreements from standing up in court.
“It’s written so broadly I can’t think of anything DHS would do that wouldn’t fall under that. But at the same time, that makes it potentially unenforceable,” the official added.
Rick Su, a professor of immigration law at the University of North Carolina, said: “They are trying to hamper the power of a subsequent administration. The federal government cannot relinquish or delegate its sovereign power in this manner.”
A former Trump administration official called the legal agreements “an attempt at undemocratic sabotage.” Another current official said the agreements would ensure that the states and local jurisdictions that sign them continue to give information to Homeland Security that would help immigration agents detain and deport potentially dangerous immigrants.
The Biden administration has said, among other immigration policy changes, that it would like to end Trump’s “Remain in Mexico” policy, which keeps immigrants waiting in Mexico until their asylum cases are adjudicated, undo other policies that have made it harder for immigrants to qualify for asylum, and give participants in the Deferred Action for Childhood Arrivals program, known as Dreamers, permanent status to stay in the U.S. by enacting new laws. Biden has also said he will set up a task force to reunite migrant families separated by the Trump administration’s “zero tolerance” policy.
Under the agreements, all of those policies could be stalled if states argue that they were not consulted. The agreements stipulate that Homeland Security, even under new leadership, must provide the local agencies “with 180 days’ written notice … of the proposed action and an opportunity to consult and comment on the proposed action.”
Rockingham County Sheriff Sam Page said his office signed the agreement only because it wants to be notified before the Biden administration changes immigration policies.
“I realize that any incoming administration is likely to make changes in policy. Policy changes at the federal level affect us on the local level. … We are simply asking for notice of these changes,” Page said.
Cory Dennis, press secretary for Louisiana Attorney General Jeff Landry, said Landry’s office plans to be a “watchdog.”
“We signed this memorandum of understanding with the Department of Homeland Security because we want to continue to support efforts to stem the tide of illegal immigration,” Dennis said, adding, “Our office will continue to be a watchdog for any changes to immigration policies that may be detrimental to the people of Louisiana.”
A spokeswoman for Indiana Attorney General Todd Rokita said she could not comment because the agreement was signed by the state’s former attorney general, Curtis Hill. Rokita took office Jan. 11.
Spokespeople for Homeland Security, the attorney general of Arizona and the Biden administration did not immediately respond to requests for comment.
Regardless of whether the agreements can be enforced in court, Su said, they open a window into how Republicans may try to fight the Biden administration on immigration policy. “Republicans are going to retreat to the states to challenge through sensational lawsuits,” he said.