Fixes to DeSantis’ immigrant program won’t necessarily solve his legal woes

Lawsuit: The Constitution grants the federal government — not states — sole and exclusive power to regulate immigration

By: - February 8, 2023 7:00 am

Migrants visiting the San Antonio’s Migrant Resource Center hope to receive resources and help getting to their final destination. Florida Gov. Ron DeSantis’ administration orchestrated private flights San Antonio to Martha’s Vineyard, offering false promises of work and free rent. September 2022. Credit: Chris Stokes for The Texas Tribune, a partner of the States Newsroom.

The Florida Legislature is trying to repair Gov. Ron DeSantis’ legally embattled asylum-seeker airlifts but, no matter what lawmakers pass during a special session going on this week and next, it won’t eliminate the governor’s legal exposure in state and federal courts.

Prominent on the House and Senate calendars for the special session that opened Monday is legislation designed to place DeSantis’ program on sounder footing. The special session is scheduled to run until Friday, Feb. 17.

“The proposed bills clearly are designed to scuttle the pending lawsuits, both by retroactively ratifying DeSantis’s 2022 actions and placing the program on a sounder legal footing going forward,” Bob Jarvis, a constitutional law professor at the Nova Southeastern University Shepard Broad College of Law, told the Phoenix by email.

Bob Jarvis. Credit: Nova Southeastern University Shepard Broad College of Law.

“I still believe, however, that Florida lacks any legal basis for moving migrants, and is interfering with a subject (immigration) that is within the exclusive province of the federal government,” Jarvis said.

The proposed legislation (HB 5B and SB 6B) would create an “Unauthorized Alien Transport Program” within the Florida Division of Emergency Management to arrange “transport of inspected unauthorized aliens within the United States, consistent with federal law.”

A member of that class of people would be defined as “an individual who has documentation from the United States Government indicating that the United States Government processed and released him or her into the United States without admitting the individual in accordance with the federal Immigration and Nationality Act.”

In other words, asylum seekers granted admission to the United States pending a decision on their claims and possibly others admitted on humanitarian ground, according to a written statement issued by the Southern Poverty Law Center.

The House bill has already cleared one committee and another will take it up on Wednesday in advance of a floor vote. The Senate version cleared its only committee assignment on Tuesday.

Civil rights claims

But that’s looking forward. A putative class action pending before U.S. District Judge Allison Burroughs in Massachusetts alleges wrongdoing that DeSantis, the Florida Department of Transportation, and a number of top gubernatorial aides have already committed in organizing flights delivering nearly 50 asylum seekers from San Antonio, Texas, to Martha’s Vineyard, Mass. in September 2022.

A separate state action, filed by Democratic state Sen. Jason Pizzo and pending before Leon County Circuit Judge John Cooper, argues that those Texas-to-Massachusetts flights violated the Florida Constitution because the Legislature authorized them through budget proviso language and not substantive legislation.

That language purported to authorize removal of “unauthorized” aliens from Florida to other states. But Pizzo’s lawsuit argues that the passengers were never “unauthorized,” having been admitted pending asylum hearings, and that they weren’t transported from Florida.

Gov. Ron DeSantis speaking at the Florida Sheriffs Association Winter Conference in St. John’s’ County on Jan. 23 (credit: Facebook screenshot)

Meanwhile, the Florida Center for Government Accountability is suing the administration in Leon County Circuit Court in seeking access to documents related to the airlift. The next action there will be a contempt of court hearing set for March 9 following the administration’s failure to turn over phone and text messages and logs for James Uthmeier, DeSantis’ chief of staff.

The pending litigation conceivably could moot at least part of Pizzo’s case; it would repeal the challenged proviso language and declare that “all payments made pursuant to that section are deemed approved.”

And DeSantis’ legal team has secured a delay that could allow the Legislature to enact its fixes and DeSantis to sign them into law before the cases concludes. Cooper had scheduled a final hearing on Jan. 30, but the governor’s lawyers filed a motion for summary judgement just three days in advance of that date.

That represented a request to find the lawsuit invalid on its face and avoid a trial on its merits. Procedural rules provide for a 40-day delay before any judge can rule on such a motion.


Contacted this week in his Senate office, Pizzo called that motion a blatant strategic move.

“The governor realizes our lawsuit’s not going well for him so, ‘Hey, my buddies across the street in the Legislature can go ahead and clear this up for me and make it go away,’” Pizzo said.

Democratic Sen. Jason Pizzo, representing parts of Broward and Miami-Dade counties. Credit: Florida Senate

Then he corrected himself: “It’s less tactical and more tacky,” Pizzo said. “It’s cheap.”

The Senate sponsor of this year’s legislation is Blaise Ingoglia, representing Citrus, Hernando, Sumter, and part of Pasco counties; in the House, John Snyder, representing parts of Martin and Palm Beach counties, is carrying the bill.

At DeSantis’ direction, the Legislature added language in the state budget for the 2022-2023 fiscal year (the one we’re in now) authorizing the Florida Department of Transportation to spend up to $12 million to remove “unauthorized aliens” from Florida. The money represented interest on federal COVID assistance money the state hadn’t spent yet.

Larry Keefe, the governor’s public safety adviser, helped negotiate a contract paying Vertol Systems Co., a former client of his, $1.5 million of that money to fly asylum seekers Massachusetts, Delaware, and Illinois, the Miami Herald reported, although flights to those last two states were scrubbed.

The administration had to travel to Texas to find enough migrants to fill the planes, which set down briefly in Florida en route to Martha’s Vineyard, where state agents dumped them on unprepared locals in a vacation destination popular with liberals. DeSantis at the time cast it as his effort to highlight what he views as lax border enforcement by the Biden administration.

“We’re not a sanctuary state, and it’s better to be able to go to a sanctuary jurisdiction and yes, we will help facilitate that transport for you to be able to go to greener pastures,” the governor said back then.

DeSantis was still defending the program as recently as last week.

“I think we’ve had a deterrent effect, and I think people are sick of having an open border with no rule of law in this country,” he said during a news conference. “So, we can just sit here and do nothing about it or we can actually stand up and say, ‘Whatever tools we have at our disposal, we are going to be using.'”

‘Inspected unauthorized alien’

Paul R. Chávez, senior supervising attorney for the Southern Poverty Law Center’s Immigrant Justice Program, agreed with Nova Law’s Jarvis that the initiative represents a political stunt.

Edgartown Harbor Light is a lighthouse located in Edgartown, Massachusetts, where it marks the entrance to Edgartown Harbor and Katama Bay. It is one of five lighthouses on the island of Martha’s Vineyard. Credit: Wikipedia.

“This state program purports to give Florida authority to target and then transport immigrants across the country with few limitations on the state executive’s power, and without resolving existing lawsuits over the infamous flight to Martha’s Vineyard and the unconstitutional program that funded the flight,” Chávez said in a written statement.

“This program has the makings of an expensive, unwieldly, and unchecked program — a waste of taxpayer money totaling $10 million. Florida cannot use immigrants across the country as pawns to continue its attack on our federal immigration system. We stand with immigrant communities across the country being cruelly targeted by the Florida government,” he added.

Plaintiffs in the federal action in Massachusetts include Alianza Americas, which advocates for Latin American and Caribbean communities, and three Venezuelan asylum seekers who say the DeSantis administration duped them into participating in the airlift.

They allege denial of due process, denial of equal protection, race and national origin discrimination, false imprisonment, negligent and intentional infliction of emotional distress, and fraud in that state agents misled them into boarding flight with false promises of jobs and assistance.

That lawsuit also argues that the administration violated the U.S. Constitution’s Supremacy Clause.

“The Constitution grants the federal government sole and exclusive power to regulate immigration. As part of its immigration power, the federal government has exclusive authority to enact and to enforce regulations concerning which immigrants to admit, exclude, remove, or allow to remain in the United States. The federal government also has exclusive authority over the terms and conditions of an immigrant’s stay in the United States. State governments do not have these powers,” the complaint says.

Finally, the lawsuit challenges use of federal COVID assistance.

“The $12 million that the defendant state of Florida appropriated for the defendants’ challenged conduct originated from the federal Coronavirus State Fiscal Recovery Fund and was therefore subject to its use restrictions. The conduct alleged herein by Defendants is not among the authorized uses of such funds,” it says.

Polarizing topic

Does Jarvis believe Burroughs would entertain a request to block the pending legislation, assuming it becomes law?

“I think the judge in Massachusetts could enjoin a new program, but probably wouldn’t do so, both because it is premature (the program’s final shape isn’t even known as this point) and because there’s no guarantee that future flights would land in Massachusetts,” Jarvis wrote.

“Predictably, red states love what DeSantis is doing while blue states think it is perverse. Of course, this should not come as any surprise — illegal immigration is a deeply polarizing subject. I think everyone would agree that we need to overhaul our immigration policies, but that’s where agreement ends.  No doubt the subject will be a hot button issue in the 2024 presidential election,” Jarvis added.

Meanwhile, a group of religious and immigration groups issued statements denouncing the legislation being pursued in the special session.

“They are retroactively trying to clean up the governor’s unconstitutional mess. It’s right in the bill. That’s exactly what this special session is about,” former state House member Carlos Guillermo Smith said.

“And we have real problems in the state of Florida. Real problems. We have a housing affordability crisis. We have folks who need food, they need shelter, they need support with utilities. And what is this money doing to help them? It’s not. We have $8 billion in reserves to solve Florida’s problems. You should be using those resources to help Floridians not to pay for another political stunt,” Smith added.

Refugees who fled the crisis in Venezuela. Credit: Victor Moriyama/Getty Images

“I came to this country when I was 13, I was an asylum seeker, my family was persecuted by the Venezuelan regime. When we came here, it was very tough to get used to this new country, but we had a community that welcomed us,” said Samuel Vilchez Santiago, Florida State Director of The American Business Immigration Coalition Action.

“I think about that. I think about the thousands of children and families that are just like my own family, who come here, escaping brutal dictatorships in countries like Venezuela, Nicaragua, and Cuba. And today, the governor and the Republican Legislature is turning their back on them and utilizing their trauma, utilizing the traumas of our community to continue expanding upon Ron DeSantis’ presidential dream. That’s wrong,” he continued.

“People don’t leave home unless home is the mouth of a shark. Unless it is impossible to live in the country that you come from and that you love and is now not loving you back. Ron DeSantis is the king of the crowd that are destroying families and destroying the hope of those who, like generations before them, come here looking to fulfill their hopes and dreams,” Sister Ann Kendrick, Co-Founder of The Hope CommUnity Center, said.

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Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal.