Why the Border Crisis Is Here to Stay By Andrew C. McCarthy •
https://www.nationalreview.com/2021/08/why-the-border-crisis-is-here-to-stay/
Absent a credible impeachment threat, President Biden and the progressives are only going to continue abetting illegal immigration.
D on’t blame me, blame the Supreme Court — along with congressional Republicans, Republican presidents, and Washington’s entrenched post-sovereign, transnational–progressive political establishment. But don’t say you weren’t warned: The only hope for reestablishing security on the southern border is a credible threat to impeach President Biden.
And don’t bet on that emerging from a Democrat-dominated House.
That blunt reality is elucidated by the Biden administration’s assault on any remaining vestige of state sovereignty. In El Paso federal court, the Justice Department has sued Texas and Governor Greg Abbott for attempting to protect the state from waves of illegal aliens who are streaming into the country.
The federal government is aiding and abetting illegal immigration. That is a violation of federal law and thus another manifestation of Biden’s disregard for his solemn duty to execute the laws faithfully, on unabashed display this week with his dictatorial eviction-moratorium decree, which he and his administration concede is unconstitutional.
Immigration law commands that aliens who do not have a legal right to be present in the United States “shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed.” That is, even those who credibly claim to fear persecution if returned from whence they came — the infinitesimally small percentage of legitimate refugees among the hordes now seeking entry — are supposed to be held in custody until that claim is fully adjudicated.
But Biden has signaled that the border is open and that those who try to cross illegally stand an excellent chance of getting in and staying. Rhetorically, the president pretends the laws are being enforced, but he knows this is impossible in the conditions he has willfully created. The government is woefully short of the detention space, enforcement personnel, and administrative resources that would be needed to handle the vast migrant crowds arriving daily.
Moreover, in the midst of a pandemic surge, when even vaccinated Americans are facing the prospect of stifling restrictions, the government lacks the resources to screen aliens for COVID-19 and other infectious diseases at the border. The Biden administration well knows that people are migrating from countries where testing and vaccination rates are significantly lower than in the United States. Heedless, it is nevertheless ushering thousands upon thousands into the country, through the services of contractors such as Catholic Charities of the Rio Grande Valley. The federal government is well aware that an alarming percentage of aliens are infected and will inevitably infect one another, Texans, and other Americans.
The numbers here are staggering, even if we were to make-believe, Biden-style, that every illegal alien who crosses the border is “encountered” by border enforcement agents. (The government prefers to speak of “encountering migrants” because it can’t say it is detaining every alien who enters illegally, as the law mandates.)
In July, there were 210,000 such “encounters,” the highest monthly figure in decades, but a figure that in the Biden era is becoming run-of-the-mill. Before hitting 190,000 in June, it had hovered around 180,000 per month since March and was significantly up year-over-year before that. Meantime, as our Zachary Evans reports, 834 unaccompanied alien minors arrived at the border on Wednesday, the largest daily total on record. Just for the month of July, that figure was over 19,000.
The administration — which maintains that the president is above the law he is sworn to uphold when the law doesn’t suit his purposes — postures that, in the matter of unaccompanied minors from Central America, the president’s hands are tied by a court-endorsed stipulation. This is the “Flores settlement agreement,” which transnational–progressive officials in the Clinton administration struck in 1997 with the Democrats’ allied alien-rights activists. Contrary to its disregard for immigration and public-health statutes, the Biden administration insists that it must abide by this caprice, notwithstanding that Congress has never codified the decree and that the Supreme Court had ruled, earlier in the same litigation, that alien minors have no right to be released in the United States.
Now, let’s move from government “encounters” with illegal immigration to the reality of the matter.
A significant percentage of illegal aliens smuggle their way into the country without apprehension or inspection. The government’s “encounter” tabulation probably reflects less than 70 percent of the total influx, and perhaps much less than that. As the Center for Immigration Studies’ Andrew R. Arthur details, “the true number of migrants who have entered illegally this year is close to 1.6 million.” That’s a population slightly larger than that of Philadelphia, the nation’s fifth-largest city. Hundreds of thousands of those have gotten in — separate and apart from the “encountered” migrants, many of whom Biden is settling rather than detaining and removing.
We are not talking about managing an unremarkable illegal-immigration problem, as any advanced country must do. In these numbers, it is an invasion — and hostile, even if not armed, because it quite consciously violates our laws and our sovereignty.
As long as the Biden policies remain in place, there is no end in sight; the challenge just metastasizes. Treating us as if we were imbeciles, the administration assures us that it is moving migrants away from the border (i.e., deeper into the country) to centers where they are “processed” and given dates to show up for hearings, at which their refugee and other claims to remain in the U.S. will be adjudicated. But this is ridiculous.
A high percentage of the aliens will never make their court appearances. Furthermore, the enforcement bureaucracy is so overwhelmed that tens of thousands of aliens are not even being fully processed. Instead of being issued a “notice to appear” (NTA) for expedited removal hearings — which is illusory compared to detention, but at least subjects the alien to immediate removal if captured after flouting it — the Biden administration has taken to releasing aliens with just a “notice to report” (NTR). This is essentially a “pretty please” request that the aliens show up at an ICE office for processing within 60 days. If they blow that off, there is arguably no automatic removal upon arrest because an NTR lacks the legal formalities of an NTA.
Texas is bearing the brunt of this onslaught, and the pandemic has brought matters to a head.
To the consternation of the media-Democrat complex, the Trump administration’s reaction to COVID-19 included issuance of a “Title 42 order.” This invoked the government’s longstanding, commonsense closing of the border to prevent the spread of infectious disease. Naturally, as part of the Left’s border-erosion policies, Biden lifted the Title 42 order for unaccompanied minors. Sounds humanitarian, right? Except, as progressive Democrats knew it would, the dispensation for minors further catalyzed what was already a rush to the border.
Predictably, the Rio Grande Valley and other border hot spots have been overrun with aliens who’ve tested positive for COVID-19. The Biden administration is nevertheless admitting aliens, and employing contractors to transport and house them across the state. Mind you, this is happening even as Biden inveighs against Americans for failing to get vaccinated or, if they are vaccinated, for resisting the restrictions that vaccines are supposed to obviate. The president is recklessly triggering an influx of aliens whose presence violates our laws, who are supposed to be detained, and who will inexorably spread a disease that Biden describes as deadly, in the communities of Americans whom it is Biden’s most basic obligation to protect.
With the federal government not merely failing to act but acting as an accomplice, Governor Abbott, as the chief executive elected and sworn to protect a sovereign state, issued an order on July 28 that no person other than a federal, state, or local law-enforcement official may transport migrants who have been detained and would be subject to expulsion under Title 42. Further, he has authorized Texas authorities to stop vehicles reasonably suspected of carrying such migrants and reroute them from whence they came. If there is resistance, state officials may impound the vehicle.
Rather than responding by assisting a state in the midst of a crisis, and shoring up the border, which is a sovereign responsibility, the Biden administration – as usual, bowing to the woke Left – has responded by suing Texas and Abbott. To be crystal-clear about it, the Biden Justice Department has sided against a state and its citizens, on behalf of aliens who entered our country in violation of the laws Biden is sworn to uphold, a material percentage of whom are carrying a disease that has roiled the United States for a year and a half.
In its suit, the Justice Department places heavy reliance on the Supreme Court’s Obama-era decision in Arizona v. United States, contending that Texas is powerless to interfere in the execution of federal immigration policy. As I argued at the time, the Arizona ruling consummated the decades-long project to eviscerate state sovereignty.
To make a long story short, the Constitution does not expressly empower the federal government to make immigration law. The original assumption was that internal law enforcement would be a state responsibility. Congress is vested with authority to set the qualifications for citizenship, not to enforce immigration restrictions. As is its wont, though, the Supreme Court inferred federal power into being. It derived such power from Congress’s authority over naturalization, in conjunction with a theory that the capacity to control borders — an ineliminable ingredient of sovereignty — implied wide-ranging immigration-enforcement authority.
How ironic. Though the Constitution doesn’t say Washington has immigration authority, the Court derives it from the natural right of self-defense that undergirds the sovereign power of border security. But Washington won’t secure the border. Texas, which is supposed to be dually sovereign in our federalist system, is desperate to secure its border, but Washington won’t allow the border to be secured … notwithstanding that the duty to provide such security is Washington’s only legitimate claim to immigration-enforcement power.
As was bound to happen, the inference of a federal authority gradually became federal domination — the judicially endorsed power to preempt state law. For the states, this was a manageable arrangement as long as we were clear on what federal law is. That is, the law for these purposes is the corpus of statutory immigration law enacted by Congress. Congressional law as written is duly protective of state security and calls for the detention and removal of illegal aliens; state action was not preempted as long as it was consistent with this federal law. Thus, state enforcement supplemented federal enforcement, providing security.
The Obama/Biden administration, however, had a different theory. It contended that preemption means states are bound not merely by federal law but also by federal policy — i.e., the manner in which the executive branch chooses to enforce the laws. That, of course, includes the exercise of federal discretion not to enforce the laws, if that is the president’s preference. The Supreme Court bought that argument.
As I’ve recounted, in 1837, the Court had expressly recognized that mass influxes of illegal immigration were an “evil” from which a state government had the “duty” to “protect its citizens.” The modern Court, to the contrary, reasons that it is exclusively up to the federal government to decide whether states rate enforcement protection.
That premise is potentially ruinous in the hands of an administration such as Biden’s, which is under the thumb of woke-progressives. Yet, even conservative justices have facilitated the federal evisceration of the states’ sovereign right to self-defense. They have concurred that immigration enforcement is as exclusive a federal domain as Congress chooses to make it, so long as federal lawmakers state their preemptions clearly.
I’m confident that those justices figured no administration would risk the political damage that would ensue from encouraging massive illegal immigration (and all its downside security, health, economic, educational, and social consequences). But they did not account for the Democrats’ ascendant Bolshevik wing, whose political calculation is that massive illegal immigration is reshaping the electoral map in their favor. These Democrats do not fret about the fear and anger of “racist” citizens in states that vote for Republicans. So, while the federal refusal to enforce the law and secure the border may be unpopular in border towns such as McAllen, Texas, it has progressives swooning thousands of miles away in Washington, on the coasts, and in major cities under Democratic control.
Whatever led the judiciary to this point, here we are. The Biden Justice Department is a lock to win its lawsuit against Texas because the progressive political class, with the imprimatur of the federal courts, has decided that it is up to the president whether, and to what extent, we have a border. And as we saw during the Trump administration, a president is apt to get pushback from the political class only if he has the temerity to fortify our border defenses.
There is no legal recourse. The only counter is political. Absent a credible impeachment threat – which does not exist at this time, particularly given the partisan breakdown on Capitol Hill – Biden and Democrats will continue to pursue their transformative open-borders objectives. They will continue telling Texas: There is nothing you can do about it.
Telling people they have no power to defend themselves is playing with fire.
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