The Laken Riley Act, signed into law on Jan. 29, 2025, mandates the detention without bail of certain noncitizens arrested or charged with certain crimes. The crimes include burglary, theft, larceny, shoplifting, assaulting a police officer, or crimes that result in death or serious bodily injury. The affected noncitizens include persons inadmissible for having entered without inspection, committed immigration fraud or misrepresentation, or made a false claim of citizenship. There is no provision allowing for the person’s release if the criminal charges are later dropped. The new law applies even to immigrants who are authorized to be here, including asylum applicants or those granted Deferred Action for Childhood Arrivals (DACA) or Temporary Protected Status (TPS). There is no exception for minors.

It is the first piece of legislation of Trump’s new presidency dealing with immigration enforcement, and it drew wide bipartisan support. Forty-six House Democrats and ten Democratic senators joined all Republicans in backing it.

The law is named after a Georgia nursing student who was murdered by an asylum applicant from Venezuela; he was convicted and is now serving a life sentence without parole. He had previously been apprehended for petty theft in New York but had not been detained. As horrible as the crime was, an in-depth study of incarceration rates concluded that for the past 150 years, immigrants overall have been less likely to commit crimes than people born in the United States.

Immigrant rights advocates and others have decried the lack of due process now afforded to suspects. CLINIC called the requiring the detention for those merely accused of low-level crimes as “unconstitutional, impractical, and often inhumane.” Many immigrants arrested for suspicion of committing a crime when faced with the prospect of mandatory, indefinite detention will be pressured to give up their rights to an immigration hearing or a trial on the criminal charges, assuming any are brought. As a result, they would likely be deported without going through any court system, even where the acts they were suspected of committing do not qualify as a deportable offense.

Other provisions of the law – arguably much more far-reaching – have drawn much less attention. They give state officials the right to sue to block the issuance of visas to people from countries they believe do not fully cooperate with the United States in accepting deportees. These are called “recalcitrant countries” and currently include Vietnam, China, India, Cuba, and Russia. Giving such power over immigration and foreign relations to the states is unprecedented.

The law also gives states the right to sue the federal government if an immigrant who was paroled into the country commits a crime that harms the state or any of its residents. This provision essentially gives governors and state attorneys general control over federal enforcement and detention policies. While it is unlikely that any state would exercise this authority to sue the Trump administration, it would empower them during a future administration that changed the current Department of Homeland Security (DHS) enforcement priorities.

As background, a lawsuit filed by Texas and other red states challenging the Biden administration’s termination of the first Trump administration’s Migrant Protection Protocols (MPP) was found lacking by the Supreme Court. It held that MPP was not mandated by federal law and that states’ ability to enforce it interfered with the executive branch’s authority to manage foreign relations. Biden v. Texas, 597 U.S. ___ (2022). In a separate case, Texas and Louisiana brought a similar challenge to the Biden administration’s prioritizing the removal of noncitizens who pose a threat to national security, public safety, or border security. United States v. Texas, 599 U. S. ____ (2023). The Supreme Court dismissed the action and held that the states lacked standing to challenge the Executive Branch’s broad discretionary power over the enforcement of laws governing arrests and prosecutions, including those in the immigration context. The Laken Riley Act, therefore, sets up a potential constitutional challenge should a state sue the federal government over its decision to parole or release an immigrant that the state believes should have been detained.

Congress has yet to fund the additional DHS agents necessary for the new law’s enforcement or the additional detention space needed to incarcerate the suspected criminals. Prior to its passage, the agency sent a memo to lawmakers warning that implementation of the law would be "impossible to execute with existing resources." DHS estimated that in its first year it would cost an additional $26 billion to pay for personnel costs, detention resources, transportation, and other expenses. The agency also predicted that it would run up against states, cities, and local jurisdictions that currently do not cooperate with federal immigration enforcement.