Biden’s Immigration Treachery Threatens the Nation, Not Just National Security By Andrew C. McCarthy
The president is telling Texas and other border states that the federal government will neither protect them nor allow them to protect themselves.
T he photographs that should be seared in your memory from the Del Rio debacle are not those of Border Patrol agents on horseback, defamed by their federal superiors — and in particular, by President Biden himself — for daring to do their job.
Focus instead on the photos of police vehicles arrayed in long, imposing rows on the American side of the river — state police vehicles, ordered to secure the border by the governor of Texas.
Does Governor Abbott have the authority to deploy a “steel wall” of Lone Star State troopers? Well, he has the raw power to do it, and in crisis conditions, that is what tends to matter. And — capped by White House oracle Jen Psaki’s astonishing assertion that the “migrants” Democrats are inviting into our country don’t need the COVID vaccines Biden is mandating for Americans because “they are not intending to stay here for a lengthy period of time” — the administration’s ineptitude was sufficiently humiliating that Biden hasn’t challenged Abbott’s démarche . . . yet, anyway.
As it happens, I believe the state of Texas does have the authority to exclude illegal aliens. But it is a debatable question thanks to a century of federal jurisprudence, culminating in Obama-era Supreme Court decisions that sided with the federal government’s willful refusal to perform its basic constitutional duties, and against the basic constitutional principle of state sovereignty — of which self-defense is an ineliminable element.
As I argued at the time, this is a mortal threat to what makes the United States united.
The late, great Justice Antonin Scalia framed the matter starkly while dissenting in Arizona v. United States (2012): Imagine if Article I had granted Congress the power “to establish Limitations upon Immigration that will be exclusive and that will be enforced only to the extent the President deems appropriate.”
That was the interpretation of the Constitution that the Obama–Biden administration urged, and the Court indulged, in denying the state of Arizona its presumed sovereign power to defend its citizens from the ravages of mass illegal immigration. True to form, Scalia posed the third-rail question that few cared to touch: “Would the States conceivably have entered the Union if the Constitution itself contained the Court’s holding?”
The answer, of course, is no. The Obama–Biden position was both historically absurd and practically unsustainable. It was endorsed nevertheless by Chief Justice John Roberts (naturally), along with Justice Anthony Kennedy (ever erratic) and three progressives, Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. The fourth progressive, Justice Elena Kagan, would surely have joined the majority, but she had to recuse herself because she’d previously served as the Obama–Biden administration’s solicitor general and a key architect of its legal policy.
Policy is the operative word.
Originally, the states were responsible for policing trespassers in their territories. As Justice Scalia’s bracing question suggested, the retention by the states of the power to exclude people who lacked the legal right to be present was elemental and assumed. During the 20th century, Washington and its courts gradually divested the states of their primacy over immigration enforcement. Yet, the arrangement remained tolerable because the states were prohibited only from contravening federal law — meaning congressional statutes and regulations consistent therewith. And that law unambiguously instructs that illegal border-crossers be detained and removed.
The Obama–Biden administration took the radical position that the states were preempted from contravening not only federal law but also federal policy — meaning the executive administration’s preferences, including its distortion of the concept of prosecutorial discretion into a license to flout the president’s core constitutional duty to execute the laws faithfully. Ergo, by Obama–Biden lights, if the presidential administration chose to refrain from enforcing congressional statutes and chose to abdicate its fundamental duty to secure our borders, the states — including border states such as Texas that would bear the brunt of these derelictions — were powerless to defend themselves.
That is not our Constitution but its antithesis. As Scalia succinctly observed, had such a notion been peddled to the states in 1787, “The delegates to the Grand Convention would have rushed to the exits.”
The Obama–Biden policy, as abided by the Supreme Court, was a time bomb with potentially existential ramifications. It has detonated with President Biden’s assumption of office and his sedulous dismantling of Trump-era border-enforcement policies.
The illegal-alien caravan of 15,000 in Del Rio, many of its members from Haiti by circuitous way of South and Central America, is just the latest and most blatant example. While the Biden administration postures about sending a fraction of the “migrants” back to Haiti, its insidious “Homeland Security” secretary — what Orwell would have made of attaching that title to Alejandro Mayorkas! — breezily acknowledges that 12,000 of them have been released into our country.
Understand: This is a blatant violation of federal immigration law, as I pointed out last month in discussing another iteration of Biden’s eradication of Texas’s sovereign right to self-defense. The governing congressional statute 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” (emphasis added). It is impeachably lawless for Biden to release thousands upon thousands of illegal aliens into our country.
It is not just that the administration knows the majority of the “migrants” will never report as directed to immigration agencies or make court appearances — under circumstances in which they have no plausible claim of a right to be here. The blunt fact is that, while Biden has a constitutional obligation to secure the border, he has no legal authority to “parole” illegal immigrants into the country.
As adroitly explained by the Center for Immigration Studies’ Andrew Arthur, a former federal immigration judge and national-security official, the provision on which the administration purports to rely for parole authority provides no such authority. And Biden knows this. Mayorkas has proposed regulations that would allow the administration to do what Congress has not permitted: offer illegal aliens for whom it decides “detention is unavailable or impracticable” parole en masse. Obviously, if DHS already had the legal authority to do what it is doing, no such regulation would be necessary.
Meantime, with the administration conceding that government “encounters” with “migrants” are now topping a staggering 200,000 per month, a surge that began right after Biden took office, it is worth remembering that the administration’s log of encounters does not come close to accounting for all “migrant” entries. Aside from the tens of thousands of illegal aliens whom Biden is releasing into the country, at least another 60,000 sneak in without being encountered at all (since those encountered make up only 70 percent, and probably less, of illegal entries).
Over a quarter-million foreigners per month breaching our borders in blatant violation of our laws is an invasion by any sensible standard. (It may not be an armed invasion, but it’s more accurately branded as an invasion than the Capitol riot is an “insurrection.”) Biden and his handlers would tell you that, given the breadth of the influx, they have no choice but to parole even if they lack the legal authority to do so. That is laughably, though tragically, false. The administration’s legal duty is to detain whomever it catches trying to enter; to the extent that it lacks the confinement space to detain the massive influx of illegal aliens its policies have created, its duty is to prevent them from entering the country in the first place. Releasing them is illegal. Since the president is not above the law, his option is to follow the law and honor his constitutional duty, not abet law-breaking and imperil national security.
The peril, it must be stressed, is not just to national security but to the nation itself. The border is under siege. Biden has a choice to protect the states, as he is sworn to do, or align himself with foreign intruders, as he is doing. This is not a mere matter of the president’s intruding on rental leases to preclude eviction, as tyrannically lawless as that was. Biden is telling Texas and the other states that the national government will neither protect them nor allow them to protect themselves. As Justice Scalia had the wisdom to see, that is not the constitutional arrangement to which Texas or any other state agreed.
Biden is playing with fire.
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