State of Texas: Immigration policy challenge goes before Supreme Court

AUSTIN (Nexstar) — The battle over immigration policy shifted Tuesday from the Texas border to the U.S. Supreme Court. On Tuesday, the court heard oral arguments in a case challenging how the Biden administration is enforcing immigration laws, arguing that the administration is wrongly limiting who can be deported.

Texas’ argument stems from new guidelines issued by Homeland Security Secretary Alejandro Mayorkas in 2021, which recommends that states should prioritize deporting terrorists, other dangerous criminals and those who have recently crossed the border illegally, rather than attempt to deport all people in the country illegally. The guidelines came about in part because of limited manpower and resources. 

Aaron Reichlin-Melnick, policy director at the American Immigration Council (AIC), says our immigration system is complicated and that that has effects on those who have already immigrated. 

“The reality is, we live in a world of limited resources, ICE is never going to be able to arrest every undocumented immigrant in the country,” Reichlin-Melnick said.

The AIC has indicated support for the administration’s policy.

“So for undocumented immigrants who are already in the country who are keeping their heads down, and who are contributing, paying taxes and generally have a generally following other laws, that Myorkas enforcement priorities gave them some sense of security,” Reichlin-Melnick said. “But in a world in which there are no enforcement priorities, that means much more arbitrary enforcement, ICE agents can pick and choose who they want to go after with no rhyme or reason or guidance from Washington, DC. And that’s just not a good way to run the system.” 

Lawyers representing Texas argue that the Biden administration’s enforcement of immigration law endangers the citizens of Texas. 

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Chance Weldon, director of litigation for the Texas Public Policy Foundation, a conservative policy group, supports the state’s case. 

“This is one of those cases that people follow because they think it’s about immigration,” Weldon said, “But really, it’s about who decides immigration policy, whether that’s the legislative branch or the executive branch, and ultimately, whether or not states like Texas have the right to get into court to challenge immigration policies that ultimately affect the state’s bottom line.”

University of Texas Law professor Stephen Vladeck filed an amicus brief in this case, questioning the state’s methods of advancing the case.

“Texas has abused the federal courts by intentionally, repeatedly, and solely filing its Texas-based lawsuits against the federal government in district court divisions staffed entirely, or almost entirely, by judges appointed during presidencies of the Texas Governor’s and Attorney General’s party. In many of these cases, Texas has had a 95% (or greater) chance of drawing a specific judge,” Vladeck’s brief stated. “Those courts have repeatedly issued nationwide injunctions against a growing array of actions and initiatives undertaken by the Biden administration.”

In response, Weldon said going to judges where litigators think they will have a favorable outcome is nothing new. 

“That’s been present in litigation since there’s been litigation, progressive states, like California filed in California when they wanted to sue the Trump administration in the state of Texas is going to file in Texas whenever it wants to sue the Biden administration,” Weldon said. “I mean, for one thing, because that’s where they’re injured. They’re injured in Texas because they are Texas. And yes, there are more conservative judges here, but…folks have been filing lawsuits in favorable jurisdictions since there’s been litigation.”

There has been a dispute about the language of the current law, which says illegal immigrants “shall” be taken into custody, and whether the federal government is overstepping its power.

“I think the broader issue here is that the administration has taken an interpretation of the law that’s contrary to the text, the statute that Congress passed,” Weldon said. “A very interesting part of the argument today that went on for five minutes where they’re going back and forth and saying, well, ‘does shall mean shall?’, and the Federal the federal attorney in the case was saying, ‘well, sometimes shall mean shall and sometimes shall means may. And I just don’t think that’s a reasonable way to look at the law.” 

“It’s our job to say what the law is, and I don’t think we should change that responsibility because Congress and the executive can’t agree on something that’s possible,” Chief Justice John Roberts said.

Reichlin-Melnick gave insight into why his group is opposed to the state’s lawsuit: 

“This case has implications beyond just immigration law. Not only would a decision in Texas’s favor lead to a significantly more arbitrary immigration enforcement system, it could also greenlight the ability of states to bring these kinds of lawsuits against the federal government in the first place. Texas is arguing that it has a right to go to court anytime any government policy leads to more immigrants in its state, regardless of whether those immigrants are people here legally or otherwise.” Reichlin-Melnick said. “Our system of checks and balances works best when people who are harmed by federal policies can go to a federal judge and get an order in their favor. But at the same time, we don’t want the courthouse doors to be so wide open, anyone can go into court anytime and overturn wide swaths of executive action. In this case, the Supreme Court is going to have to figure out how to strike a balance.” 

The SCOTUS decision is expected by late June 2023.

Texas finds funding to start tracking impact of substance abuse on foster children

As a former foster mother, Cameron Hernholm knows how traumatic it can be for a child when they are removed from their home and enter the Child Protective Services system.

It’s especially true in Texas, she said, where a shortage of beds at residential treatment facilities and in foster homes over the last few years left hundreds of children spending nights in state office buildings and hotel rooms, waiting for placement. Lawmakers, advocates and even a panel of national child welfare experts discussed solutions — including ways to prevent children from entering state custody in the first place.

“Children have much better outcomes if they are able to stay with their permanent and biological family, rather than entering the foster care system,” Hernholm explained.

She now serves as the chief philanthropy officer at Nexus Recovery Center in Dallas. They house mothers undergoing treatment for substance abuse and addiction with their children, in order to keep families together. They also offer resources for pregnant women in recovery.

“It is a very vulnerable place, and typically what we find is why a mother wouldn’t get treatment is because she doesn’t know what would happen to her children if she were to seek treatment,” Hernholm said. “Do I lose my kid? Or do I go and get treatment for an illness that I know I need help with?”

According to national data from the Adoption and Foster Care Analysis and Reporting System, Texas has one of the highest rates of children being removed from their homes due to alcohol or drug abuse by their parents. In 2019, more than 60% of cases in Texas indicated substance abuse as a condition of the child’s removal. The national average was under 40%.

Hernholm said her team at Nexus serves more than 2,000 mothers and children every year with its different programs. They started tracking how many removals have been stopped and how many children have been reunified with their families due to Nexus’ services, but she said it would be helpful to see this kind of data on a statewide level.

In 2013 and again in 2019, lawmakers directed the Texas Department of Family and Protective Services (DFPS) to collect specific data on the issue, including:

• The number of children reported to the department who at birth tested positive for the presence of alcohol or a controlled substance;
• The controlled substances for which the children tested positive;
• The number of children who were removed from their homes and have been diagnosed as having a disability or chronic medical condition resulting from the presence of alcohol or controlled substances; and,
• The number of parents who test positive for the presence of a controlled substance during a department investigation of a report of abuse or neglect of the parent’s child.

“The idea here is: let’s get tracking on it,” said Texas Sen. Charles Perry, R-Lubbock, at a committee hearing in 2019. “We should know, and I think foster parents specifically have a right to know.”

However, nearly four years later, DFPS released a memo stating it did not have the funding to create this report.

The memo explained the agency’s automated case tracking and information management system, called IMPACT, may have this kind of information entered in narrative form, but there was no way to pull it out into aggregate data without reading every investigation manually.

“This would be costly and time-consuming since the data is manually entered on a case-by-case basis and not readily searchable,” the memo read.

Then, just a few weeks later after KXAN asked the agency about the lack of funding, a DFPS spokesperson told us it found the necessary money to update the IMPACT system, using existing state appropriations. The spokesperson said those updates are scheduled for fiscal year 2023.  

“The data that’s out there is great, but the more data we have access to — the more sophisticated that data is — the better we’re able to be with the services that we provide,” said Jesse Booher with DePelchin Children’s Center.

He explained that DFPS already made it easy for foster and adoption agencies such as Depelchin to access this type of information on a case-by-case basis through the narratives kept in the system. However, until now, the state has not been able to compile aggregate data about substance use and its impacts.

Booher explained that DFPS does track certain “proxy measures” that are often used as indicators of potential substance abuse, such as neglectful supervision, which can help target programming and funding.

According to the DFPS October report, neglectful supervision was found in more than 67% of CPS investigations.

Still, Booher told KXAN that a wider view of the issue with aggregate data could help everyone involved know how to best target resources.  

“To reach as many people who need our services as possible in the highest quality way. And data is what allows us to do that effectively and efficiently,” he said.

Despite waitlist record, leaders keep pushing ‘Eliminate the Wait’ plan for state hospitals

As the waitlist for a state hospital bed in Texas continues to grow, mental health leaders remain dedicated to the widespread adoption of a strategy known as “Eliminate the Wait.” KXAN first reported on this approach to reduce pressure on the waitlist in 2021 — a partnership between the state’s Judicial Commission on Mental Health and the Health and Human Services Commission.

“Over the past year, we’ve brought training, technical assistance to law enforcement, jail administrators, courts and counties,” said Dr. Jennie Simpson, HHSC’s state forensic director, Thursday during a regional forum in Austin on the issue.

JCMH and HHSC — along with the Hogg Foundation for Mental Health, Sheriffs’ Association of Texas, Texas Police Chiefs Association and Texas Council of Community Centers — hosted the forum. Among its goals:

• Share national, state and local best practices;
• Provide stakeholder-specific training to law enforcement, behavioral health providers, court officials and jail staff; and,
• Support county leadership in reviewing waitlist data, discussing the local competency restoration process, and developing an action plan and task force for change.

“There are a significant number of people who are better served with treatment in connection to the support and services that address the factors that put them at risk of justice involvement,” Simpson added.

The main component in the “Eliminate the Wait” plan has been a toolkit that identifies the root causes of the ballooning waitlist and provides checklists for different mental health and criminal justice officials with a hand in the restoration process. People found mentally incompetent to stand trial most often receive restoration treatment in a state hospital before they can actively participate in their own defense.

Plan organizers have previously cited a 38% increase in the number of people found incompetent to stand trial in Texas over the past two decades. In September 2021 — around the time the plan was unveiled to the public and potential stakeholders — 1,766 people were waiting in jail for a state hospital bed, according to HHSC data.

One year later, KXAN reported that number had reached a record 2,540. The average wait time for a maximum-security bed was 699 days at that point — also a record, according to HHSC data.

State officials have largely blamed low staffing levels at state hospitals, where bed capacity was down 33% in September 2022. Only 1,510 of Texas’ 2,263 funded beds were then available for use, HHSC data showed.

Much of the discussion at Thursday’s forum surrounded other restoration options to ease the burden on the state hospital system and perhaps find better treatment alternatives for eligible individuals.

The toolkit is laid out in checklist form, using questions to determine the best course of action for each individual. Some may be able to avoid lengthy stays in the justice system, while others who need restoration services might be better suited for jail-based or outpatient treatment — potential solutions KXAN has previously explored.

“If we increase appropriate diversion, we’re going to reduce the…waitlist,” Simpson explained. “And this is really a simple math problem.”

The “Eliminate the Wait” plan highlights three causes for the backlog. First, people with mental illness or developmental disabilities are arrested despite diversion being available. Second, competency restoration service is a temporary and narrowly focused rehabilitation effort that does not create a treatment plan for long-term recovery and rejoining the community. And third, the process is inefficient, and people found incompetent to stand trial may be restored and return to jail only to mentally deteriorate again before their case concludes.

“We all recognize not everyone is appropriate for diversion, but the population that isn’t appropriate for diversion — we’re not talking about them today,” said Simpson, regarding options stakeholders should be considering.

In January, state lawmakers will resume policymaking in a new legislative session. A bill expected to be revived from a failed 2021 attempt is one that would create an Office of Forensic Services within HHSC to specifically focus on the waitlist and data related to it. The author — Sen. Sarah Eckhardt, D-Austin — recently told KXAN Texas “must have” that type of focus to make progress with the backlog.

Another competency-related bill — HB 479 — already filed by Rep. Gina Hinojosa, D-Austin, aims to speed up the time it takes to transfer a defendant to a facility for treatment. Under the proposal, the transfer would have to take place within 21 days of the court-ordered commitment. If space is not available at that facility, the court would then be required to commit the defendant to another facility with competency restoration services or a jail-based restoration program.

ERCOT predicts power grid reliability, watching for extreme conditions

Texas utility leaders said they feel confident the state’s power grid will be able to withstand winter weather this year, but they are still keeping an eye on certain extreme conditions outlined in two new reports about power availability and reliability.

In a press conference Tuesday, Peter Lake, chairman of the Public Utility Commission of Texas, said he “absolutely” expects the lights to stay on, given the changes implemented over the last two years.

At least 246 people died and millions were left in the dark when a winter storm plunged the state into freezing temperatures for days in February 2021. Lawmakers required power generators and electricity providers to prepare their equipment for freezing conditions.

Lake outlined several additional reforms, including improved communication across state agencies and the industry, as well as an effort to map critical infrastructure for the natural gas supply chain, which is needed to keep the state’s power generators online.

Still, a seasonal assessment report from the Electric Reliability Council of Texas, which operates the power grid, shows scenarios where Texans could be asked to conserve their power usage during an emergency. The most extreme scenario outlined in the report, involving high demand for electricity and generation outages, could result in outages and rolling blackouts.

“There is a scenario where under the most extreme conditions there is not enough power. That is not acceptable,” said Pablo Vegas, the new CEO of ERCOT. “We’re not trying to underplay it at all. It does reflect a very low probability scenario, so we want to be clear on what it is.”

Vegas went on to say he believes this is why an ongoing review of the electric market design will provide more long-term solutions. He pointed to the ever-growing population in Texas leading to increased demand for power. Meanwhile, he said many sources of power generation being added to the system are wind and solar generators, which provide more generation in the summer months than in the winter months.

“The elements that are outside of our control — which is what generation elements get built and when, as well as how fast demand grows in the state — those elements also outside of our control have a pretty significant potential impact on the reliability of the grid,” Vegas said.

Lt. Gov. Dan Patrick cited the statement from Vegas at a Capitol news conference Wednesday, where he laid out his legislative priorities. Patrick listed electric grid reliability as his second-most important issue for the session, behind property tax relief.

Patrick is pushing for more natural gas power plants as a way to reduce the risk of rolling blackouts. He said the state should fund incentives to build natural gas power plants, saying they’re more reliable than renewables like wind and solar power.

“Renewables are great, okay. They help keep our air clean. They help lower our rates. But you have to have enough dispatchable that you can count on,” Patrick said. “And one of the ways to do that is level the playing field. We have to level the playing field so that we attract investment into natural gas plants.”

Lake said they still will use “every tool available,” including calling for conservation, to avoid an emergency, but have avoided outages during record-setting heat this summer and even this past winter.

“The basic arithmetic of adding and subtracting numbers doesn’t account for the many reforms we have put in place like better coordination and communication,” Lake said.

Vegas also emphasized that weatherization requirements for power generators would have the most “significant impact” on reliability. Since the 2021 storm, he said they have inspected 450 of these generators. Each year, they expect to inspect one-third of the state’s generators; meaning over the next four to six weeks, they plan to conduct 350 inspections.

FAA implements hot air balloon safety rule following Lockhart crash

The Federal Aviation Administration officially implemented a rule requiring commercial balloon operators to have a second-class medical certificate, according to a release from Sen. Ted Cruz (R-Texas).

This comes more than six years after 16 lives were lost when a hot air balloon, whose pilot was under the influence, crashed into a power line in Lockhart.

In the fall of 2018, Rep. Lloyd Doggett (D-Texas) and Cruz both worked on bipartisan legislation to require medical and physical exams for commercial balloon pilots. The act was signed into law in October 2018. The law gave the FAA 180 days to work those requirements into its regulation.

In November 2021, the FAA proposed a rule that addressed the requirements of the act, a spokesperson for the FAA said. That rule was officially implemented this month, according to Cruz.

Following the deadly hot air balloon crash that took place in Lockhart, Texas back in 2016, I made it my mission to advocate for increased, preventative safety provisions for commercial balloons. In order to prevent the recurrence of a tragic event like this, I worked to pass the bipartisan Commercial Balloon Pilot Safety Act as part of the FAA Reauthorization, which stipulated that commercial hot air balloon operators must have a second-class medical certificate, just like what is required of other pilots.

Rules like this will help to make sure the tragedy in Lockhart never happens again, and I am proud to have led the fight to make commercial hot air balloons safer for future riders and operators.

Sen. Ted Cruz

In July, Doggett pushed for the FAA to implement the rule, saying it had delayed it and ignored safety experts. He also said the National Transportation Safety Board found the FAA’s lack of a medical certificate contributed to the Lockhart crash on July 30, 2016.

Doggett shared the following statement in response to the implementation of the rule:

Almost six and a half years after the Lockhart tragedy from an impaired pilot, a full four years after passage of our law to ensure such tragedies cannot repeat, now, the law is finally in full force. The FAA inexcusably delayed and delayed for years, even after we wrote this requirement into a law, which was explicit. Now, thankfully, we finally have action.

Passage of my passenger safety bill was the result of the dedicated work of the families and all who petitioned for this belated action. For the many who prayed and mourned the loss resulting from this unnecessary tragedy, know that you have been heard. We cannot bring these precious lives back. But, now that this is finally implemented, we hope no more families will be exposed to the horror of a crash from an impaired pilot.

Rep. Lloyd Doggett

The full text of the rule can be read online.